C.S.W.U. Local 1611 v. SELI Canada and others (No. 8)

Date Issued: December 3, 2008

File: 4196

Indexed as: C.S.W.U. Local 1611 v. SELI Canada and others (No. 8), 2008 BCHRT 436

IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal

B E T W E E N:

Construction and Specialized Workers’ Union Local 1611 on behalf of

Foreign workers on temporary work visas from Central and South America, at

this time Costa Rica, Columbia, and Ecuador, who are employed by the

Respondents and are employees covered by the bargaining certificate granted

by the Labour Relations Board of British Columbia between the Construction

and Specialized Workers’ Union, Local 1611, and SELI Canada Inc. and

SNCP-SELI Joint Venture

COMPLAINANT

A N D:

SELI Canada Inc., SNCP-SELI Joint Venture and SNC Lavalin Constructors

(Pacific) Inc.

RESPONDENTS

REASONS FOR DECISION

Tribunal Panel:

Heather M. MacNaughton,

Barbara Humphreys

and Lindsay M. Lyster

Counsel for the Complainant:

Charles Gordon, assisted by, for parts of the

hearing or in written submissions,

Christopher Misura, Carol Whittome,

Josh Paterson and Kevin Blakely

Counsel for the Respondents:

Peter A. Gall, Q.C., assisted by, for parts of

the hearing or in written submissions,

John Heaney, Craig Munroe and Nitya Iyer

Counsel for Certain Employees:

Dates of Hearing:

Keith J. Murray (written submissions with

respect to applications by Certain Employees)

September 24, October 1 – 4 and 23 – 25,

November 5 – 6 and December 5 – 7, 2007,

January 21, 25 and 28, February 13 – 15 and

29, March 10 and 12 –13, and April 10, 2008

ii

TABLE OF CONTENTS

I

INTRODUCTION................................................................................................. 1

SUMMARY OF DECISION................................................................................ 4

THE PROCEEDINGS AND THE STRUCTURE OF THIS DECISION ....... 4

The proceedings...................................................................................................... 4

The appendices...................................................................................................... 10

The roadmap ......................................................................................................... 11

THE AGREED STATEMENT OF FACTS ..................................................... 14

II

III

IV

I.

The Project and the Parties ....................................................................... 14

The Employees.......................................................................................... 15

Nature of the Work ................................................................................... 15

Terms and Conditions of Employment..................................................... 16

II.

III.

IV.

V

THE SELI CONTEXT ....................................................................................... 22

THE PROJECT CONTEXT.............................................................................. 24

Introduction to the project..................................................................................... 24

Senior project management................................................................................... 26

The Latin American workers ................................................................................ 27

The European workers.......................................................................................... 34

THE COLLECTIVE BARGAINING CONTEXT .......................................... 41

Certification, bargaining and the final offer vote.................................................. 41

The Final Offer Vote decision .............................................................................. 43

Subsequent events................................................................................................. 45

VI

VII

The effect of the Final Offer Vote decision on the proceedings before the Tribunal

............................................................................................................................... 46

iii

VIII APPLICATION TO CALL REBUTTAL EVIDENCE AND RELATED

FINDINGS OF FACT......................................................................................... 47

Procedural background to the application............................................................. 48

Evidentiary background to the application ........................................................... 49

Reasons for allowing the application.................................................................... 63

Findings of fact related to the rebuttal evidence................................................... 65

IX

ANALYSIS .......................................................................................................... 71

Prima facie case ................................................................................................... 71

1.

What is necessary to establish a prima facie case in the circumstances of this

complaint?.................................................................................................... 71

2.

Has CSWU established a prima facie case? ................................................ 79

The first element – what grounds are engaged by the complaint?............... 79

The second element – is there adverse treatment?....................................... 85

The third element – were the grounds of discrimination factors in the

adverse treatment? ..................................................................................... 115

3.

Conclusion on the prima facie case ........................................................... 135

Bona fide occupational requirement ............................................................... 137

1.

2.

Introduction................................................................................................ 137

Is the prima facie discriminatory treatment justified because of SELI’s

international compensation practices? ....................................................... 138

The Respondents’ assertions and submissions about SELI’s international

compensation practices.............................................................................. 138

The evidence and our findings about SELI’s international compensation

practices ..................................................................................................... 144

Do SELI’s international compensation practices as applied in British

Columbia justify the adverse treatment?.................................................... 157

Conclusion on discrimination .......................................................................... 163

Certain Employees’ Application to Opt Out.................................................. 163

iv

1.

2.

Background................................................................................................ 163

Reasons and Decision ................................................................................ 166

Remedy............................................................................................................... 168

1.

2.

Introduction................................................................................................ 168

Analysis and remedial orders..................................................................... 170

Section 37(2)(a) – Cease and refrain order................................................ 170

Section 37(2)(b) – Declaration................................................................... 170

Section 37(2)(d) – Compensatory orders for financial loss....................... 170

Section 37(2)(d)(iii) – Injury to dignity, feelings and self-respect ............ 173

Interest........................................................................................................ 176

Panel remains seized.................................................................................. 176

APPENDIX A..................................................................................................................... i

APPENDIX B ..................................................................................................................... i

APPENDIX C..................................................................................................................... i

APPENDIX D..................................................................................................................... i

APPENDIX E ..................................................................................................................... i

v

I

INTRODUCTION

[1]

The Construction and Specialized Workers’ Union, Local 1611 (“CSWU”) filed a

representative complaint on behalf of a group of Latin American workers employed by

the entities responsible for the construction of the tunnel on the Canada Line project,

formerly known as the “RAV Line” project. The Canada Line project is one of the

infrastructure improvements being constructed in Vancouver in advance of the 2010

Olympics. When complete, it will link Richmond and the Vancouver International

Airport with downtown Vancouver. The tunnel constructed by the Respondents goes

underneath downtown Vancouver from Waterfront Station to the south side of False

Creek.

[2]

The Complainant Group was described by CSWU in the complaint as:

Foreign workers on temporary work visas from Central and South

America, at this time Costa Rica, Columbia, and Ecuador who are

employed by the Respondents and are employees covered by the

bargaining certificate granted by the Labour Relations Board of British

Columbia between the Construction and Specialized Workers’ Union,

Local 1611, and SELI Canada Inc. and SNCP-SELI Joint Venture.

[3]

The term “Latin American” was used throughout the hearing to describe the

members of the Complainant Group, and in this decision we refer to the group on whose

behalf the complaint was filed as the “Complainant Group” or the “Latin American”

workers.

[4]

CSWU named SELI Canada Inc., SNCP-SELI Joint Venture and SNC Lavalin

Constructors (Pacific) Inc. as the respondents to the complaint. SELI Canada Inc. is a

wholly owned subsidiary of SELI SPA, which is based in Rome, Italy, and which

specializes in tunnel boring operations worldwide. SNC Lavalin Constructors (Pacific)

Inc. is a wholly owned subsidiary of SNC Lavalin Canada Inc. SNCP-SELI Joint

Venture is a joint venture between SNC Lavalin Constructors (Pacific) Inc. and SELI

Canada Inc, and is responsible for constructing the tunnel on the Canada Line project.

We refer to the respondents collectively as the “Respondents”, and to the three

respondents individually as “SELI”, and occasionally “SELI Canada”, “the Joint

1

Venture” and “SNC Lavalin”, respectively, as required. We also refer to SELI SPA as

“SELI” or “SELI SPA”, as required.

[5]

CSWU alleges that the Respondents discriminated against members of the

Complainant Group on the basis of their race, colour, ancestry and place of origin in

respect of the terms and conditions of their employment, contrary to s. 13 of the Human

Rights Code. The members of the Complainant Group were included in the bargaining

unit represented by CSWU at the time the complaint was filed.

[6]

Members of the Complainant Group had worked for SELI on the La Joya

hydroelectric project in Costa Rica, and were brought by the Respondents to Vancouver

to work on the Canada Line project in or about April 2006. At that time, the members of

the Complainant Group started assembling the tunnel boring machine (“TBM”) to be

used on the Canada Line project, after which they began the specialized tunnelling work.

Canadian residents were hired to do non-specialized work outside the tunnel. Thereafter,

the Respondents brought other workers from Europe, who came to Vancouver starting in

or about September 2006, to work alongside members of the Complainant Group

performing specialized work in the tunnel. We refer to this group as the “European”

workers.

[7]

In the original complaint, filed August 3, 2006, CSWU alleged that the Latin

Americans were discriminated against in comparison to the Canadian residents with

whom they worked initially. CSWU amended the complaint on October 12, 2006, to add

allegations that the Latin Americans were discriminated against in comparison to the

Europeans who had, by that time, started to arrive and work on the project.

[8]

In the first written preliminary decision rendered in these proceedings, we granted

the Respondents’ application that CSWU was estopped from relitigating its allegation

that the Respondents discriminated against the Latin Americans in comparison to the

Canadian residents, an issue on which the Labour Relations Board (the “LRB”) had ruled

against CSWU in proceedings before it: C.S.W.U. Local 1611 v. SELI Canada and

others, 2007 BCHRT 404. As a result, the complaint before us deals solely with

allegations of discrimination as between the Latin Americans and the Europeans working

for the Respondents on the Canada Line project.

2

[9]

CSWU alleges that the Latin American workers were discriminated against in the

terms and conditions of their employment. There are four main aspects of the alleged

discrimination:

• Lower salaries, with the Latin Americans being paid substantially less than the

Europeans for performing the same or similar work;

• Adverse housing, with the Latin Americans residing at the 2400 Motel on Kingsway,

and most of the Europeans being housed in condominiums rented by the Respondents

in the False Creek area, close to the worksite;

• Adverse meal arrangements, with the Latin Americans being given money for

breakfast, and tickets redeemable at two restaurants chosen by the Respondents for

lunch and dinner, and most of the Europeans being given money for breakfast and

dinner, and tickets for lunch only; and

• Adverse expense arrangements, with the Latin Americans being required to submit

expenses for reimbursements, receiving an average reimbursement of about $76 per

month, and the Europeans being given allowances of $300 per month, regardless of

actual expenses incurred.

[10] The Respondents deny any discrimination. They dispute some of CSWU’s

allegations about the wages, living conditions and benefits provided to the two groups.

They admit, however, that the Europeans were paid more than the Latin Americans. The

core of their defence is that the European workers were paid more than the Latin

Americans because of SELI’s international compensation practices.

[11] In brief, the Respondents say that the European workers were paid more than the

Latin Americans on their respective previous SELI projects. The Respondents could not

pay the Europeans less than what they had earned on their previous projects and, in

accordance with SELI practice, they were given raises to come to Vancouver. As a

result, the Europeans earned more than the Latin Americans who, while they were also

given raises to come to Vancouver after their previous project, continued to earn less than

the Europeans.

3

[12] The Respondents also raise other defences, including that the experience and

skills of the Europeans were more valuable than those of the Latin Americans. The

Respondents submit that the Latin Americans, many of whom had worked for SELI on

only one previous project in Costa Rica, were less experienced and skilled than the

Europeans, and point to this as a non-discriminatory explanation for the different terms

and conditions of employment between the two groups of workers.

II SUMMARY OF DECISION

[13] We have concluded that the complaint is justified. CSWU established a prima

facie case that the Respondents discriminated against the members of the Complainant

Group in treating them differently from, and adversely as compared to, members of the

European comparator group in respect of salaries, accommodation, meals and expenses.

The Respondents did not establish a justification for their prima facie discriminatory

conduct. In particular, SELI’s international compensation practices, as revealed in the

evidence before us, did not constitute a bona fide occupational requirement or “BFOR”.

[14] As a result of this conclusion, we have ordered what we consider to be the

appropriate remedies, including that the Respondents pay each member of the

Complainant Group the difference between the salary paid to them and the average salary

paid to members of the comparator group, the difference between the expenses paid to

members of the two groups, and compensation for injury to dignity, in the amount of

$10,000 each.

[15] We have permitted the four members of the Complainant Group, who applied to

do so, to opt out of the complaint, with the result that they do not receive the remedies

ordered.

III THE PROCEEDINGS AND THE STRUCTURE OF THIS DECISION

The proceedings

[16] This hearing took place on 24 days over eight months. It had originally been

scheduled for two weeks, which was reduced to a week in a pre-hearing conference just

4

prior to the commencement of the hearing, during which counsel assured the Tribunal

that a week would be sufficient to hear the complaint.

[17] Prior to the hearing, the parties entered into an Agreed Statement of Facts

(“ASF”), which was entered as an exhibit, and which is reproduced below. Incorporated

within the ASF were three volumes of agreed upon documents.

[18] Counsels’ time estimate proved wholly inaccurate. Despite the ASF, the parties

ultimately called 29 witnesses, five of them twice. The hearing was sometimes highly

contentious, which added to the length and difficulty of the proceedings.

[19] Further, the hearing was conducted in the face of the reality that the Respondents’

work on the Canada Line project would soon be coming to an end, and with it, the non-

resident workers on the project would be leaving the country. The hearing needed to be

completed before any non-resident workers who were going to testify left the province.

Initially, the Respondents advised the panel and CSWU that the project was expected to

complete at the end of December 2007; they later revised this estimate to mid-February

2008; and ultimately the TBM “broke through” in early March 2008, thereby bringing the

substance of the Respondents’ and the workers’ work on the project to an end. Not

without some difficulty, both parties were able to call all their witnesses prior to the

conclusion of the hearing.

[20] In the course of the hearing, the parties called upon the panel to decide a large

number of strongly contested interlocutory matters. Many of those were addressed in

formal written decisions; others were dealt with orally. The seven written decisions are

summarized below:

1.

C.S.W.U. Local 1611 v. SELI Canada and others, 2007 BCHRT 404

(“CSWU No. 1” or the “Estoppel decision”). Issued October 23, 2007.

The Respondents applied for an order prohibiting CSWU from relitigating

the issue of whether the terms of compensation contained in the collective

agreement for the Latin American and Canadian resident employees

discriminated against the Latin American workers.

The panel granted the application.

This decision is described in greater detail below in addressing the

collective bargaining context.

5

2.

C.S.W.U. Local 1611 v. SELI Canada and others (No. 2), 2007 BCHRT 419

(“CSWU No. 2” or the “Re-opening decision”). Issued November 5, 2007.

The Respondents applied to re-open the then outstanding application with

respect to CSWU’s representative status and CSWU’s retaliation complaint,

after the close of submissions, for the purposes of putting in further

evidence in the form of two affidavits, obtaining disclosure of retainer

letters from CSWU, and cross-examining CSWU witnesses.

The panel denied the application. The reasons are set out in the decision,

and include that the affidavits were inherently unreliable as they contained

hearsay, some of it double hearsay, from unidentified sources. The retainer

letters were not relevant to the representation issue, as they would not

indicate the level of support for the complaint, whether at the time it was

filed or at the time of hearing, as they were created for a different purpose.

Further, they were subject to solicitor-client privilege.

3.

C.S.W.U. Local 1611 v. SELI Canada and others (No. 3), 2007 BCHRT 423

(“CSWU No. 3” or the “Representative Status and Retaliation decision”).

Issued November 9, 2007.

At or near the outset of the hearing, the Respondents challenged CSWU’s

status as the representative of the Complainant Group, and CSWU alleged

that the Respondents had engaged in retaliation, contrary to s. 43 of the

Code. The panel originally decided that it would deal with these issues in

the context of the hearing of the merits of the complaint. The contentious

nature of the proceedings made this unworkable, and the panel, with the

agreement of the parties, later decided to deal with these issues before

dealing with the merits of the complaint.

The Representative Status and Retaliation decision is comparatively

lengthy, and the reasons not readily summarized. Rather than attempt to do

so, we set out the following extracts from the decision, first dealing with the

allegations of retaliation, and then the challenge to CSWU’s status as the

representative of the Complainant Group:

• The crux of the Union’s retaliation complaint is a petition which the

Employer presented to members of the Complainant Group for

signature. It was written in Spanish. Translated, it says: “I no longer

wish the Union to represent me before the Human Rights Tribunal.”

(para. 21)

• In all of the circumstances, the panel concludes that a reasonable

complainant in Mr. Gamboa’s and Mr. Barbosa’s position would

have found being presented with the petition in the manner they

were coercive and intimidating. They would reasonably have

6

perceived that their Employer was linking their willingness to sign

the petition with their prospects for future work. (para. 43)

• The petition was clearly intended for a purpose. On the evidence of

the Employer’s managers, it was Mr. Ciamei who directed that the

petition be prepared and presented to the employees. In the absence

of any explanation from Mr. Ciamei about another possible purpose,

the panel concludes that the purpose of the petition is clear from the

context in which it arose, and its timing. That purpose was twofold.

First, it was an attempt to intimidate and coerce individual members

of the Complainant Group to withdraw their support for the Union to

represent them in this complaint. Second, it was an attempt on the

Employer’s part to create evidence to be used to attack the Union’s

representative status and, if successful, either derail this complaint

or, at a minimum, reduce the potential number of remedial claims

against the Employer in the event the complaint is justified on the

merits. (para. 43)

• As a result of all of the foregoing, the panel concludes that the

complaint of retaliation contrary to s. 43 of the Code has been

established. (para. 49)

• The Employer applies to disqualify the Union as the representative

of the Complainant Group because it never was, or is no longer, an

appropriate representative as it failed to meet the minimum

standards the Employer says are necessary to be an adequate

representative, and it does not represent the interests and wishes of

all members of the Complainant Group. (para. 50)

• The panel is not persuaded by the arguments put forward by the

Employer that the Union is not a proper representative to proceed

with the complaint on behalf of the Complainant Group. Given the

Employer’s actions coinciding with the start of the hearing, the panel

is satisfied that it would not now be possible to determine the true

wishes of group members regarding this complaint. In any event,

Mr. Gamboa and Mr. Barbosa have testified that they wish to have

the Union proceed, and the panel concludes that, given all the

circumstances, this is sufficient. (para. 100)

• For the reasons given, the panel concludes the Employer engaged in

retaliation contrary to s. 43 of the Code. Also for the reasons given,

the panel concludes that the Employer has failed to establish that the

Union is not a proper representative of the Complainant Group. The

panel has ordered a number of remedies for the retaliation

established, including a declaration, a cease and desist order, and

costs, as set out above. (para. 120)

7

4.

C.S.W.U. Local 1611 v. SELI Canada and others (No. 4), 2007 BCHRT 442

(“CSWU No. 4” or the “Stay or Adjournment decision”). Issued November

27, 2007.

The Respondents filed a petition for judicial review of CSWU No. 3. They

applied to the panel for a stay or adjournment of the Tribunal’s proceedings

pending resolution of their application for judicial review.

The panel denied the applications.

In considering the request for an adjournment of the hearing dates, which

coincided with the days the Respondents wanted the petition to be heard in

Court, the panel held that the request was not reasonable. While the

Respondents’ desire to have the judicial review hearing held soon was

understandable, CSWU had not agreed to the dates proposed by the

Respondents, and no motion had been made to the Court to have the matter

proceed on those dates. As a result, the stated basis for the adjournment did

not yet exist. Further, the panel held that granting the adjournment would

be unduly prejudicial to CSWU. This conclusion was based in part on the

information before the panel at that time, which indicated that the project

could complete either in late December or February, with the result that any

delay in the hearing could result in employee witnesses no longer being in

the country and therefore being unavailable to testify. It was also based on

the inherent prejudicial effect of granting an adjournment of unforeseeable

length in the midst of hearing.

In considering the request of a stay of the Tribunal’s proceedings, the panel

accepted, for the purposes of the application, that there was a serious issue

to be tried. The panel did not accept that the Respondents would suffer

irreparable prejudice if the stay was not granted. The panel concluded that

the balance of convenience did not favour granting a stay.

On December 3 and 4, 2007, the Respondents applied in Court for an

interim stay of the Tribunal’s proceedings, and CSWU cross-applied for an

adjournment of the judicial review proceedings, which at that time

continued to be scheduled for December 5 and 6, when the hearing before

the Tribunal was also scheduled to resume. The Court denied the

Respondents’ application, and granted CSWU’s: oral reasons for judgment,

December 4, 2007.

In the result, the proceedings before the Tribunal continued. The

Respondents’ application for judicial review of CSWU No. 3 has not yet

been heard in court.

5.

C.S.W.U. Local 1611 v. SELI Canada and others (No. 5), 2007 BCHRT 451

(“CSWU No. 5” or the “Bias decision”). Issued December 5, 2007.

8

At the resumption of the hearing following the previous two panel decisions

and the Court’s decision denying the Respondents’ stay application and

granting CSWU’s adjournment application, the Respondents applied to the

panel to have us disqualify ourselves on the ground of bias. The

Respondents submitted that the panel could only have reached its decision

in CSWU No. 3 that CSWU had standing to pursue the complaint if it had

already concluded the complaint would succeed. Further, the Respondents

submitted that the panel, having made its decision in CSWU No. 3, now had

a direct interest in the complaint succeeding. On both these bases, the

Respondents submitted there was a reasonable apprehension of bias.

The panel denied the application. We concluded that a reasonable person,

fully apprised of the circumstances, would not conclude that the panel had

prejudged the complaint, or that it had an interest, direct or otherwise, in the

complaint succeeding.

6.

C.S.W.U. Local 1611 v. SELI Canada and others (No. 6), 2008 BCHRT 31

(“CSWU No. 6” or the “Expert Evidence decision”). Issued January 24,

2008.

The Respondents indicated their intention to call Rebecca Powers as a

witness to give evidence about a report which was published by Ms.

Powers’ employer, Mercer Human Resource Consulting (the “Mercer

Report”). CSWU objected to the proposed evidence.

The panel decided that Ms. Powers’ proposed evidence was expert opinion

evidence, and that the Report is an expert report. We concluded that Ms.

Powers was not the proper witness to call to speak to the Mercer Report as

she was not involved in its writing, editing, or peer review. Despite the fact

that the Respondents failed to comply with the requirement for introducing

expert evidence contained in Rule 33, the panel exercised its discretion to

permit the Respondents to introduce the Mercer Report, provided that they

called as a witness one of its author/editors or peer reviewers, and that

CSWU was permitted to call expert evidence in rebuttal.

Ultimately, the Respondents called Carlos Mestre to testify about the

Mercer Report.

7.

C.S.W.U. Local 1611 v. SELI Canada and others (No. 7), 2008 BCHRT 80

(“CSWU No. 7” or the “Opting Out decision”). Issued February 29, 2008.

Counsel for then unidentified “Certain Employees” filed an application for a

declaration that they had the right to opt out of the complaint or, in the

alternative, for intervenor status in the proceedings.

The panel concluded that members of the Complainant Group were

permitted, on application, and subject to certain conditions, to opt out of the

Complainant Group and the complaint.

9

Five members of the Complainant Group later applied to opt out, one of

whom subsequently withdrew his application, leaving four in total. Later in

this decision, we address that application, concluding that the four

applicants may opt out.

[21] In this decision, we do not address further any of the interlocutory issues and

decisions, except to the extent necessary to address the following matters: our reasons for

our decision allowing CSWU to call rebuttal evidence; and our decision on both the

merits of the complaint, and the application of Certain Employees to opt out of the

complaint.

The appendices

[22] In an effort to reduce the length and increase the readability of this decision, while

at the same time ensuring that all information necessary to a full understanding of the

proceedings, evidence and issues is included, we have created five appendices, which

form part of this decision.

[23] Appendix A is a chronology of the proceedings, which briefly summarizes the

major issues raised by the parties, significant correspondence between the Tribunal and

the parties, the panel’s oral and written decisions, and the witnesses who testified.

[24] Appendix B is a chronology of the proceedings between CSWU and the

Respondents before the LRB.

[25] Appendix C is a list of the exhibits introduced.

[26] Appendix D is a list of the witnesses who testified.

[27] We have reproduced as Appendix E the “TBM Bored Tunnel Organization Chart”

created by the Respondents at CSWU’s request, which was referred to in paragraph 16 of

the ASF, as it is of assistance in understanding much of the evidence and analysis. It

reflects a snapshot of the positions occupied by members of both the Complainant Group

and the comparator group as of the date of its creation, sometime shortly prior to the start

of the hearing.

[28] The names of the workers on the project, including those who testified before us,

were not spelled consistently in the parties’ materials. We have attempted to adopt

10

consistent spelling throughout, taken, wherever possible, from the immigration

documents submitted by SELI to Canadian authorities in order to obtain temporary work

permits for the workers. To increase clarity, each time we refer to an individual worker,

we use their full name, unless it is not necessary to do so in context.

The roadmap

[29] We offer the following roadmap to the structure of the body of the decision to

assist the reader in following and understanding it.

[30] The next section of the decision sets out the parties’ ASF. We refer to and

highlight some but not all of the facts contained in the ASF elsewhere in the decision. In

keeping with the parties’ agreement, however, all of the facts contained in it are accepted

as true, for the purposes of this decision. Throughout the decision, we make additional

findings of fact as necessary. Not all witnesses nor all parts of their testimony are

specifically referred to in the body of this decision, but we have taken into account all

evidence before us in reaching our conclusions.

[31] Context is crucial to any discrimination analysis. In the next three sections, we set

out three factual contexts which are necessary to this decision. First, we address the SELI

context, introducing its international compensation practices, a matter returned to in much

greater depth in the BFOR analysis. Second, we address the project context, discussing

the nature of the Respondents’ work on the Canada Line, and the employees who worked

on it. Third, we address the collective bargaining context, discussing the relationships

between the Respondents, CSWU, and the workers on the project. Facts arising out of

these three contexts are discussed in greater detail as necessary in the course of our

analysis.

[32] Having described the contexts necessary to understanding this complaint and

decision, we next turn to CSWU’s application to call rebuttal evidence about the work

performed by the Costa Rican members of the Complainant Group on the La Joya

project. In this section of the decision, we set out the procedural and evidentiary

background to that application, provide our reasons for granting the application, and

make our findings of fact about the work performed on the La Joya project. The rebuttal

11

application and findings of fact related to it form a relatively discrete part of the decision.

They were placed in this location in the decision because they inform the discrimination

analysis which follows.

[33] We then turn to the analysis of whether the members of the Complainant Group

were discriminated against. The analysis has a number of parts. First, we consider the

parties’ submissions about what is necessary to establish a prima facie case of

discrimination. Having reached our conclusions on this point, we go on to determine if

CSWU has met its burden of establishing the three elements of a prima facie case.

[34] The first element requires CSWU to establish that the members of the

Complainant Group share characteristics related to each of the four grounds of alleged

discrimination: race, colour, ancestry and place of origin. We conclude that they do.

[35] The second element requires CSWU to establish that the members of the

Complainant Group were treated adversely. In the context of this case, this element

involves a comparator group analysis, comparing members of the Complainant Group to

members of the comparator group, made up of European workers performing the same or

substantially similar work on the project. We conclude that the Respondents treated

members of the Complainant Group adversely as compared to members of the

comparator group, in respect of salaries, accommodation, meals and expenses.

[36] The third element requires CSWU to establish that the grounds of discrimination

were factors in the adverse treatment. The parties framed the complaint differently:

CSWU as one of adverse effect or systemic discrimination; the Respondents as one of

direct discrimination. In this part of the decision we discuss the significance of the

characterization to what must be proven in order to establish that the grounds of

discrimination were factors. We conclude that the complaint is, in essence, one of

adverse effect discrimination, albeit with some characteristics of direct and systemic

discrimination. We conclude that CSWU has established that the race, colour, ancestry

and place of origin of members of the Complainant Group were factors in the adverse

treatment they suffered. We further conclude that the differences in treatment are not

explained by any differences in the experience, skills or duties of the members of the two

groups.

12

[37] We conclude that CSWU has established a prima facie case of discrimination.

[38] The Respondents’ chief defence to the complaint was that the differences in

treatment, at least in terms of salary, were the result, not of discrimination, but of SELI’s

international compensation practices. In their submissions, the parties located this

defence at two different points in the analysis: the Respondents included it as part of the

prima facie case analysis, while CSWU treated it as a potential BFOR justification. We

agree with CSWU about where in the analysis SELI’s international compensation

practices should be considered. We therefore consider the evidence about those practices

as part of a BFOR analysis, not the prima facie case analysis.

[39] In the next section, we consider whether SELI’s international compensation

practices justify the prima facie discrimination we have found. We conclude that, on the

evidence before us, they do not, with the result that the complaint is upheld as a

contravention of the Code.

[40] Having concluded that the complaint is justified, we consider the application

made by four members of the Complainant Group to “opt out”. We grant their

application.

[41] In the final section, we consider what remedies should be ordered for the

discrimination we have found. We order the Respondents to cease and refrain from

committing the same or a similar contravention of the Code, and declare that the conduct

complained of is discriminatory. We order financial compensation to members of the

Complainant Group for the differences in salary and expenses paid to members of the

Complainant and comparator groups. We give directions about how the quantum of

those damages is to be determined, and remain seized in case the parties are unable to

agree. Finally, we order compensation to members of the Complainant Group for the

injury to their dignity, feelings and self-respect as a result of the discrimination to which

they were subjected.

[42] Finally, in CSWU No. 3, the Representative Status and Retaliation decision, we

ordered the Respondents to pay CSWU costs for improper conduct. The parties

disagreed about the scope and quantum of costs payable. We require further submissions

on these issues, and will write separately to the parties about the submissions required.

13

IV THE AGREED STATEMENT OF FACTS

[43] As indicated, the parties entered into an Agreed Statement of Facts, which we

reproduce here, in its entirety, not including the three Books of Documents incorporated

by reference.

1.

The following facts have been agreed to by the Parties. In addition,

the Books of Documents referred to form a part of these Agreed Facts.

I.

The Project and the Parties

2.

The Canada Line is a new rapid transit rail line that is currently under

construction in Vancouver. It will link downtown Vancouver with

Richmond and the Vancouver International Airport.

3.

The section of the Canada Line from Waterfront Station as far south as

64th Avenue is underground. The portion of the line from Waterfront

Station to the south side of False Creek is being built by boring two

tunnels. The Complaint concerns the work of boring the two tunnels

(the “Project”).

4. The Canada Line is funded by the Governments of Canada and British

Columbia, the Greater Vancouver Transportation Authority, the City

of Vancouver and the Vancouver Airport Authority. An entity called

Canada Line Company has overall authority for the Canada Line.

Another entity called InTransitBC (“InTransit”), also known as the

“Concessionaire”, has been contracted to design, build, partially

finance and maintain the Canada Line for a 35 year period. InTransit

has contracted with SNC Lavalin Canada Inc. to be the “EPC

Contractor”, giving it responsibility to engineer, procure and construct

the Canada Line.

5. The EPC Contractor has contracted the Project to the Respondent,

SLCP-SELI Joint Venture (the “Joint Venture”). The Joint Venture is

between SNC Lavalin Constructors (Pacific) Inc. (“SNC Lavalin”), a

wholly-owned subsidiary of SNC Lavalin Canada Inc., and SELI

Canada Inc. (“SELI”). SELI is a wholly owned subsidiary of SELI

SPA, which is based in Rome, Italy and specializes in tunnelling

boring operations worldwide.

6.

Under the joint venture agreement, SELI provides the tunnelling

expertise for the Project. Labour is supplied by SELI, and by the Joint

Venture. Certain managerial and non construction employees are

provided by SNC Lavalin.

14

II. The Employees

7.

It is understood and agreed that the employees with which this

complaint is concerned (“Employees”) are non-managerial employees

of SELI or the Joint Venture who perform construction work on the

Project, whether above or below ground.

8.

SELI SPA employs individuals from many different countries and

frequently deploys its employees with expertise in tunnelling to

various projects around the world. SELI SPA offered a number of its

employees with tunnelling experience who were working on SELI

SPA projects at various locations around the world the opportunity to

work on the Project in Vancouver. Employees who wished to work on

the Project were hired by SELI.

9.

All of these non-resident Employees had previously been employed by

SELI SPA or its subsidiaries on other tunnelling projects for periods

ranging from 12 months to 20 years.

10. The Joint Venture hired workers resident in the Lower Mainland to

work on the Project. None of these workers had previously worked for

SELI SPA.

11. The number of workers employed on the Project and the number of

shifts has varied, depending upon the particular stage of the Project.

III. Nature of the Work

12. Employees rotate through all shifts, switching between shifts on a

weekly basis. The work on the Project can be divided between the

underground and aboveground shifts which are as described below.

13. The work underground involves the tunnel boring machine (“TBM”)

boring a tunnel through the rock. Presently, there are 3 shifts of 8

hours each. The TBM is operated by a TBM Pilot. There is also a

TBM Mechanic and a TBM Electrician associated with operating the

TBM. As the TBM progresses, pre-formed concrete rings are erected

which form the interior of the tunnel. These rings are erected using

hydraulic equipment by an Erector Operator and an Erector Operator

Helper. Once the rings have been erected, they are bolted together and

then sealed using grout pumped from a batch plant on the surface; this

work is done by a Grouting Pump Operator. The material excavated

by the TBM is taken by conveyor and loaded into rail cars; the

conveyor is operated by the Conveyor Operator. The rail cars are

picked up by a locomotive and pulled to the surface where the

excavated material is removed, and the empty cars returned to be

filled. The locomotive is operated by the Loco Operator. As the TBM

progresses, more track and service lines (water, air and grout) need to

15

be laid for the tunnel to proceed; this work is done by the several

General Labourers. Finally, each shift underground is supervised by a

TBM Shift Foreman and sometimes (depending on the criticality of the

tunnel section) also by a tunnel engineer.

14. The work aboveground is concerned with supporting the underground

excavation. This consists of operating the batch plant which produces

the grout used to seal the rings; this plant is operated by the Grout

Plant Operator. There is also a gantry crane which is operated by the

Gantry Crane Operator, and two to three General Labourer positions

that help unload the rail (muck) cars and load the concrete segments

and other materials.

15. In addition to the above production work, there is a significant amount

of maintenance and support work involved in the Project.

Underground maintenance is done daily on the maintenance shift and

involves a Hydraulic Mechanic, a Diesel Mechanic, Welders, a

Cutterhead Mechanic and a Cutterhead Mechanic Helper.

Aboveground, there are a number of other positions in the yard

working day shift only; these include a Yard Foreman, Muck Pit

Excavator Operator, several Forklift Operators, a Crane Operator,

many Segment Repair & Rail workers and a large number of General

Labourers.

16. In response to a request by the Complainants, the Respondent

compiled a document entitled “TBM Bored Tunnel Organization

Chart” showing each of the positions on the Project and the employees

occupying those positions. A copy of that document is at tab 122 of

the documents.

IV. Terms and Conditions of Employment

17. Offers of employment were made to resident Canadian Employees

starting in January, 2006. These offers were made in writing and set

out the start date, position, hourly rate of pay, benefits and other

conditions of employment. Copies of representative offers of

employment made to the resident-Canadian Employees are set out at

tabs 40 to 78 of the documents.

18. SELI SPA began asking its existing workers whether they were

interested in working on the Project in the winter of 2005 and spring of

2006. Because the SELI SPA projects in Latin America were coming

to an end, many employees on those projects accepted work on the

Project.

19. Existing SELI SPA Employees were hired by SELI starting in January

2006.

16

20. SELI and the Joint Venture made the arrangements, including having

documents drafted, for the Employees who were coming from Latin

America to obtain work permits that would allow them to work on the

Project in Vancouver. For each of the foreign workers, these

documents included, inter alia, the following:

•

A letter to Citizenship & Immigration Canada setting out the

type of work permit sought, the duration thereof, the proposed

position for the worker and his duties on the Project, the reason

that the particular worker had been selected for the Project, and

his salary in Canadian dollars.

•

An Application for a Work Permit Made Outside of Canada,

signed by the worker.

A Letter of Assignment, setting out the conditions of the

assignment, including the compensation package, and signed by

the worker, on SELI SPA letterhead.

•

A Declaration to Citizenship and Immigration Canada by SELI

SPA setting out the terms of transfer from SELI SPA to SELI,

including the position to be held and salary to be paid in

Canadian dollars.

21. After arriving in Vancouver, these Employees were asked to sign a

second Letter of Assignment, this one on SELI letterhead, containing

some different assignment conditions. These Letters of Assignment

expressed the annual salary in net U.S. dollars.

22. Copies of the documents submitted to Citizenship & Immigration

Canada, as well as the Letters of Assignment signed in Vancouver,

that have been produced for each of these workers are found at tabs 1

to 39 of the book of documents. Some of the documents for certain

Employees have not been located.

23. Employees coming from Europe began accepting employment with

SELI on the Project in July and August 2006. They were given Letters

of Assignment on SELI Canada letterhead, which they signed. These

set out the assignment conditions, including annual salary which is

expressed either in net Canadian dollars or net Euros. Copies of the

Letters of Assignment and documents submitted to Citizenship &

Immigration Canada for each of the European workers are found at

tabs 79 to 99 of the book of documents.

24. On June 30, 2006, the Union was certified by the B.C. Labour

Relations Board (the “LRB”) for a bargaining unit described as

“employees engaged in tunnelling operations in British Columbia,

17

except office, sales, engineering and surveying” employed by SELI

and the Joint Venture.

25. The bargaining unit includes 59 of the 103 Employees currently

employed on the project.

26. The Union and Employer are parties to a collective agreement. That

agreement was the result of an application for a last offer vote made by

the Employer under s. 78 of the B.C. Labour Relations Code. A copy

of the collective agreement is found at tab 123 of the book of

documents. Schedule “A” of the collective agreement sets out the base

compensation for “Canadian Resident Employees”. Schedule “B” of

the collective agreement sets out the base compensation for the “Non-

resident Employees”.

27. The terms and conditions of the 44 non-bargaining unit Employees are

set out in their respective individual Letters of Assignment or

employment agreements.

28. Of the 59 bargaining unit Employees employed on the Project, 24,

who normally reside in the Lower Mainland, are treated as “Canadian

Resident Employees” under the collective agreement. The remaining

35, including Luis Alajandro Montanez Lara who normally resides in

Manitoba, are treated as “Non-resident Employees” under the terms of

the collective agreement.

29. Payroll documents showing the amounts paid to each employee on the

Project from April 2006 to the end of May 2007 are set out at tabs 110

to 117 of the book of documents.

30. As set out in the collective agreement and, where applicable, their

individual contracts of employment, all non-resident Employees were

provided with accommodation in Vancouver.

The documents

pertaining to employee accommodations are set out at tabs 101 to 108

of the book of documents. At the current time, the employees in

question are accommodated as follows:

First Name

Family Name

Country

Brazilian

Canada

Accommodation

627 Moberly Rd

2200 Dundas Street

2400 Motel

Wilson

De Carvalho

Luis Alajandro Montanez Lara

German Dario Caro Fonseca

Colombia

18

Hector Manuel Sanchez Mahecha

Colombia

Costa Rica

2400 Motel

1422 E. 61 Avenue

2400 Motel

Henry

Builes Tamayo

Lopez Salguero

Cortes Huertas

Noguera Lopez

Duran Aguilar

Jose Anselmo

Rogelio

David Jesus

Elian

Anthony Raul

Cristhian

David

Gamboa Elizondo

Leiton Calderon

Bonilla Granados

Barboza Cedeno

Calderon Araya

Douglas

Efrain

Ernesto de la T. Camacho Cordero

Franklin

Gabriel

Mora Gamboa

Esquivel Garcia

Cordero Camacho

Martinez Cordero

Sanchez Alvarado

Barboza Sanchez

Barboza Cedeno

German

Gilberto

Ignacio

José Antonio

Jose Luis

19

Jojans

Sanchez Chaves

Ruiz Mora

Costa Rica

2400 Motel

Juan Jose

Luis Alberto

Mario Alberto

Mario

Retes Anderson

Alvarado Camacho Costa Rica

Flores Brenes

Costa Rica

Martin Alonso

Serrano Gutierrez

Marvin Enrique Vasquez Moya

Walter

Quiros Monge

Zuniga Perez

Picon Alarcon

Felipe

Carlos Elidio

Ecuatoriana 2400 Motel

Yandry Eugenio Tuarez Fortis

Magusig

Alex

Mendoza

Villajuan

Scorzafava

Folino

Filipines

Italiano

2400 Motel

633 W. 8th Avenue

Giuseppe

Tommaso

Buffa

Giuseppe Felice Lopez

Guerino

Mirco

Mellea

Giannotti

20

Rotella

Ferruccio

Italiano

807 W. 8th Avenue

2400 Motel

Julio Vitor

Tiago Andre

Soares Pereira

De Sousa Ribeiro

Portogallo

2400 Motel

Vitorino Manuel Ribeiro

2400 Motel

Antonio E.

Jose Paulo

Pinto Rodrigues

Da Silva Tavares

2400 Motel

619 Moberly Rd

627 Moberly Rd

655 Moberly Rd

2400 Motel

Antonio Fernando Barbedo Da Silva

Bruno Miguel

Pedro Filipe

Pere Salellas

Salvador

Ferreira Ribeiro

Nascimiento Morais Portogallo

Payrot

Spagna

Garcia Gonzalez

Collar Blanco

619 Moberly Rd

655 Moberly Rd

Jose Antonio

Jorge

Romero Berengena Spagna

Lopez Cozar Spagna

Antonio

31.

The Parties agree that the following employees perform substantively

the same work as employees holding the same positions as indicated

on the “TBM Bored Tunnel Organization Chart” contained at tab 131

of the Documents:

Hector Manuel Sanchez Mahecha

Rogelio Cortes Huertas

Foreman

German Dario Caro Fonseca

Pilot

Ernesto de la Trinidad Camacho Cordero

Erector Operator

21

Anthony Raul Gamboa Elizondo

Cristhian Leiton Calderon

Henry Builes Tamayo

Erector Operator

Segment Transport

Electrician

Walter Quiros Monge

Grouting Operator

Loco Operator

Rail & Cleaning

Gabriel Esquivel Garcia

Juan Jose Luis Mora

David Bonilla Granados

Jojans Sanchez Chaves

Jose Luis Barboza Cedeno

(To be consistent with references to them elsewhere in this decision, we

have amended this paragraph of the ASF to reflect the workers’ full

names.)

[44] In addition to the ASF, during the course of the hearing the Respondents

stipulated the following facts:

a.

b.

The European workers received a $750 monthly allowance designated

as “pocket money” on their payslips; and

It is composed of $150 for breakfast ($5/day), a further $300 for

dinner ($10/day), and a further $300 for miscellaneous expenses.

V THE SELI CONTEXT

[45] SELI SPA is based in Rome, Italy, and specializes in tunnelling projects. SELI

SPA has extensive international operations. The evidence before us revealed that SELI

SPA has carried out tunnelling projects throughout Europe; in Central and South

America, including the La Joya project in Costa Rica; Hong Kong; the Philippines;

Africa; and the Middle East. So far as the evidence before us shows, the Canada Line

project is its first project in Canada.

22

[46] SELI staffs these projects through the deployment of a mobile international labour

force that has expertise in SELI’s tunnelling technology, and moves from project to

project. Any additional labour needs are filled by hiring local employees to work on the

project in a particular location.

[47] SELI’s practices in compensating its workforce are a significant issue in this

complaint, as the Respondents rely on them to explain or justify the differences in

compensation paid to the Latin Americans and the Europeans working on the Canada

Line project. In brief, the Respondents say that the compensation package offered to

SELI’s international labour force for a particular project is a function of three elements:

a.

b.

c.

the employee’s actual compensation for work at the location of the

project for which the employee is currently employed (“Current

Project”);

the labour market rates for roughly comparable work at the location

of the project for which the compensation package is being

developed (“Next Project”); and

the length of the employee’s service at SELI or its affiliated

companies and his/her particular skills and ability to operate

particular equipment.

[48] According to the Respondents, if an employee’s compensation on the Current

Project is less than the labour market rates for roughly comparable work on the Next

Project, the employee will be offered a compensation package that is at least equivalent to

the applicable labour market rates at the location of the Next Project. On the other hand,

if an employee’s compensation on the Current Project is more than the labour market

rates for roughly comparable work on the Next Project, the employee will be offered a

compensation package that is at least equivalent to the employee’s compensation on the

Current Project.

[49] Again according to the Respondents, SELI’s compensation structure ensures that

each individual who, having worked on a Current Project, accepts employment on a Next

Project, will receive an increase in pay. The Respondents say that the amount of that

increase will depend on the following factors:

a.

the employee’s compensation on the Current Project;

23

b.

c.

d.

whether labour market rates in the location of the Current project are

higher or lower than they are in the location of the Next Project;

the experience and skills gained by the employee on the Current

Project (as well as previous projects); and

SELI’s need for those skills and experience on the Next Project.

[50] A number of factual and legal issues arise with respect to SELI’s international

compensation practices. One key issue is whether the Respondents’ assertions about

those practices are borne out in the evidence before us. A second key issue is whether, as

established in the evidence before us, those practices either provide a non-discriminatory

explanation or justify the differences in compensation paid to the Latin American and

European workers on the Canada Line project.

[51] We do not address those issues now. They are addressed through the course of

the decision, especially in the following two parts of the decision: in considering the

third element in the prima facie case analysis, namely whether the race, colour, ancestry

and place of origin of members of the Complainant Group were factors in the adverse

treatment to which they were subjected while working on the Canada Line; and in

considering whether SELI’s compensation practices justify the prima facie discriminatory

treatment established against members of the Complainant Group.

VI THE PROJECT CONTEXT

Introduction to the project

[52] SELI Canada is a wholly owned subsidiary of SELI SPA. SELI Canada is the

directing party in the Joint Venture with SNC-Lavalin constructing the underground

tunnel portion of the Canada Line rapid transit system between the Waterfront SkyTrain

station and False Creek. As part of the joint venture agreement, SELI Canada provides

the tunnelling expertise and equipment.

[53] We repeat the following parts of the ASF:

3.

The Canada Line is funded by the Governments of Canada and British

Columbia, the Greater Vancouver Transportation Authority, the City

of Vancouver and the Vancouver Airport Authority. An entity called

Canada Line Company has overall authority for the Canada Line.

24

Another entity called InTransitBC (“InTransit”), also known as the

“Concessionaire”, has been contracted to design, build, partially

finance and maintain the Canada Line for a 35 year period. InTransit

has contracted with SNC Lavalin Canada Inc. to be the “EPC

Contractor”, giving it responsibility to engineer, procure and construct

the Canada Line.

4.

The EPC Contractor has contracted the Project to the Respondent,

SLCP-SELI Joint Venture (the “Joint Venture”). The Joint Venture is

between SNC Lavalin Constructors (Pacific) Inc. (“SNC Lavalin”), a

wholly-owned subsidiary of SNC Lavalin Canada Inc., and SELI

Canada Inc. (“SELI”). SELI is a wholly owned subsidiary of SELI

SPA, which is based in Rome, Italy and specializes in tunnelling

boring operations worldwide.

5. Under the joint venture agreement, SELI provides the tunnelling

expertise for the Project. Labour is supplied by SELI, and by the Joint

Venture. Certain managerial and non construction employees are

provided by SNC Lavalin.

[54] The oral evidence before us was that the Respondents bid on and obtained the

project in or about May 2005. As we discuss in further detail below, Andrea Ciamei,

SELI’s Project Manager on the Canada Line project, testified about his efforts to

determine the Canadian market rate for the work to be performed, and those rates were,

he testified, used to put together the bid. No tender or contractual documents showing the

basis upon which the Respondents bid or obtained the project were entered into evidence.

[55] As we discuss in further detail below, the Respondents advertised in Canada for

workers to perform the specialized tunnelling work, but no applications were received.

The Respondents then decided to use Latin American workers who had been working on

the La Joya project, which was coming to an end, to perform the specialized tunnelling

work on the Canada Line project, supplemented by a few key European managers and

technicians. Canadian residents were hired, starting in January 2006, to perform

aboveground, non-specialized work. As set out in the ASF, there are also a few positions

located aboveground which support the specialized tunnelling work, namely the Batching

Plant Operators, Gantry Crane Operators, Crane Operator, and Yard Labour, and the

Latin American workers who held those positions are part of this complaint.

25

[56] According to Mr. Ciamei, the Respondents’ Canada Line office opened on

November 1, 2005, and site preparation began in January 2006. As discussed in further

detail below, the Latin American workers arrived in April and May 2006. Their first task

was to assemble the TBM. Tunnelling began on June 10, 2006, with two shifts, made up

almost entirely of Latin Americans performing all specialized tunnelling work.

[57] SELI submitted documents to Canadian immigration authorities in order to obtain

work permits for the Latin American and European workers. As mentioned in the ASF,

these included, in each case: a letter to Citizenship and Immigration Canada, setting out

the type of work permit sought, the duration thereof, the proposed position for the worker

on the Canada Line project and his duties on the project, the reason that the particular

worker had been selected for the project, and his salary in Canadian dollars; an

Application for a Work Permit Made Outside of Canada, signed by the worker; a Letter

of Assignment, on SELI SPA letterhead, setting out the conditions of the assignment,

including the compensation package, and signed by the worker; and a Declaration to

Citizenship and Immigration Canada by SELI SPA setting out the terms of transfer from

SELI SPA to SELI Canada, including the position to be held and salary to be paid in

Canadian dollars.

[58] In addition, workers signed a second a Letter of Assignment after they arrived in

Canada, which contained some different terms and conditions of employment than those

set out in the Letters of Assignment signed abroad. The Respondents were unable to

locate all of the documents referred to in these two paragraphs for all Latin American and

European workers; those that were located were entered into evidence, either as part of

the ASF or as subsequent exhibits.

Senior project management

[59] It is useful to set out the names and titles of the managers responsible for the

Canada Line project who testified in these proceedings.

[60] Fabrizio Antonini is a General Director and Shareholder in SELI SPA. As such,

he is responsible for all SELI jobsites worldwide, including Human Resources. He

occasionally visited the Canada Line project.

26

[61] Andrea Ciamei was SELI’s Project Manager for the Canada Line project, and as

such, the most senior Respondent manager on site.

[62] Roberto Ginanneschi was SELI’s TBM Tunnel Manager, and as such, responsible

for the specialized tunnelling work, including supervising all of the workers at issue in

this complaint.

[63] Piero Angioni was employed by SELI as its General Administrator on the Canada

Line project. His duties were exclusively administrative rather than technical in nature.

Because of his fluency in Spanish, he was designated as the primary liaison for the

members of the Complainant Group.

[64] Gabriele Dell’Ava was employed by SELI as the Supervisor of the work external

to the tunnel on the Canada Line project. The workers he supervised are not directly at

issue in this complaint.

[65] Christopher Wates was employed by the Joint Venture as its Human Resources

Manager. He also assisted with SNC Lavalin and SELI employees working on the

project.

[66] Four other SELI SPA managers, who had no direct involvement with or

responsibility for the Canada Line project, also testified. Three of them, Romeo

Gencarelli, Lorenzo Pellegrini and Pietro Favaretto, were involved in the La Joya project.

Their duties and evidence are discussed in the course of dealing with the evidence about

what the Costa Rican employees did on that project. The final SELI manager to testify

was Marco Sem, who works in Italy, and is responsible for Human Resources for SELI

SPA.

The Latin American workers

[67] As indicated above, the Respondents’ evidence was that, after they were

unsuccessful in attracting any Canadian residents to apply for the specialized tunnelling

work, they decided to bring a group of Latin Americans who had been working on the La

Joya project, which was nearing completion, to Vancouver to perform the specialized

tunnelling work on the Canada Line. The Respondents’ plan, at this stage, was for the

27

Latin Americans, supplemented by a few key European personnel, to perform all the

tunnelling work.

[68] The vast majority of the immigration documents for the Latin American workers

were submitted by SELI to the Canadian authorities in March 2006. The immigration

documents and Letters of Assignment show that all but two of the Latin American

workers arrived in Vancouver to start work on the Canada Line project in April and May

2006.

[69] The only exceptions are as follows. SELI submitted documents to Canadian

immigration authorities with respect to:

• Henry Builes Tamayo, a Columbian TBM Electrician, in January 2006; his

Letter of Assignment indicates he was to start on February 22, 2006.

• Raul Otoniel Rozo Muñoz, a Columbian TBM Mechanic, in January 2006;

his Letter of Assignment indicates he was not to start work until May 2006.

• Jose Anselmo Lopez Salguero, a Columbian TBM Loco Mechanic, in

January 2006; his Letter of Assignment indicates a March 2006 start date.

• Hector Manuel Sanchez Mahecha, a Columbian Shift Foreman, in January

2006; according to his Letter of Assignment, he was to start work in

Vancouver in April 2006.

[70] Immigration documents and/or Letters of Assignment were entered into evidence

for 40 Latin American workers. This includes Luis Alajandro Montanez Lara, who is

originally from Columbia, for whom there are no immigration documents because he had

obtained landed immigrant status in Canada prior to coming to work on the project in

October 2006.

[71] Of those 40 Latin American workers who started work on the Canada Line

project, the largest number were Costa Ricans who had worked for SELI on the La Joya

project for what the immigration documents indicated were periods of up to three years –

there were 30 employees in this category. There were also eight Columbians, including

Mr. Montanez Lara, who had worked on between two and seven previous SELI projects,

for periods ranging up to 26 years. Finally, there were two Ecuadorians, who had worked

for SELI since 2000 on two previous projects.

28

[72] Not all of the Latin American workers stayed for the entire length of the project.

It is not possible from the documents entered into evidence to determine precisely when

every Latin American worker left, or how many Latin American workers were working

on the Canada Line project for each month until the project completed and the remaining

Latin Americans left, in March 2008.

[73] Some meaningful snapshots of the Latin American contingent working on the

Canada Line project can be taken.

[74] Mr. Ciamei swore an affidavit in support of the Respondents’ application to

dismiss the complaint on September 20, 2006. Mr. Ciamei’s affidavit was entered as an

exhibit in these proceedings, and he confirmed the truthfulness of its contents when he

testified. In his affidavit, Mr. Ciamei lists the non-resident employees working on the

Canada Line project as of the date the complaint was filed, August 3, 2006. Thirty-eight

Latin American workers are listed. In the table below we have added the positions held

by each of them, as indicated on the Organization Charts which were entered into

evidence.

[75] All of the Organization Charts were created by Mr. Ginanneschi. The one on

which we chiefly rely is reproduced as Appendix E, and was created shortly before the

hearing began in September 2007. The date of the earlier one is not indicated on the

document, and Mr. Ginanneschi did not testify as to when it was created. It is apparent,

however, from the names that appear upon it, that it was created some time relatively

soon after the complaint was filed in August 2006 and the Europeans began work in

September 2006. Mr. Ginanneschi testified that he created the latest one in December

2007. The employees’ positions as written on the Organization Charts are not necessarily

the same ones indicated in the immigration documents or Letters of Assignment, but we

find that they are the most reliable documentary indicator of the work actually performed

by the workers on the project.

Name

Country

Position as listed on Appendix E;

position as listed on earlier and

later Organization Charts given

where different

Anthony Raul Gamboa

Costa Rica

Erector Operator; earlier listed as

29

Elizondo

Erector Operator Helper

TBM Mechanic

Carlos Elidio Picon Alarcon

Cristhian Leiton Calderon

Ecuador

Costa Rica

Segment Transport Beam Operator;

earlier listed as Erector Operator;

later listed as Rail and Cleaning

Cristobal Barboza Rivera

Costa Rica

Not listed on Appendix E; earlier

listed as Rail and Cleaning;

therefore appears to have left

project before Appendix E was

created

David Bonilla Granados

David Jesus Noguera Lopez

Douglas Barboza Cedeno

Costa Rica

Rail and Cleaning

Gantry Crane Operator

Erector Operator Helper; later listed

as Conveyor Operator

Efrain Calderon Araya

Costa Rica

Conveyor Operator; earlier

Organization Chart lists as Shuttle

Conveyor Operator (which appears

to be the same thing as Conveyor

Operator); not listed on later

Organization Chart, and therefore

appears to have left project before it

was created

Elian Duran Aguilar

Costa Rica

Crane Operator

Erector Operator

Ernesto de la Trinidad

Camacho Cordero

Felipe Zuniga Perez

Costa Rica

Yard Labour

Franklin Mora Gamboa

Gantry Crane Operator; earlier

listed as Yard Labour

Gabriel Esquivel Garcia

Costa Rica

Loco Operator; earlier listed as

Shuttle Conveyor Operator

German Cordero Camacho

Costa Rica

Erector Operator Helper

TBM Pilot

German Dario Caro Fonseca Columbia

Gilberto Martinez Cordero

Costa Rica

Columbia

Yard Labour

Hector Manuel Sanchez

Mahecha

Shift Foreman

Henry Builes Tamayo

Columbia

TBM Electrician

Yard Labour

Ignacio Sanchez Alvarado

Costa Rica

30

Jose Anselmo Lopez

Salguero

Columbia

Diesel Mechanic

Jose Antonio Barboza

Sanchez

Costa Rica

Rail and Cleaning

Jose Luis Barboza Cedeno

Jose Maria Martinez Pena

Costa Rica

Columbia

Gantry Crane Operator

Not listed on Appendix E; listed on

earlier Organization Chart as TBM

Pilot; therefore appears to have left

project before Appendix E was

created

Jojans Sanchez Chaves

Juan Jose Ruiz Mora

Costa Rica

Rail and Cleaning; earlier listed as

CHD Mechanic Helper; later listed

as Erector Operator Helper

Loco Operator

Luis Alberto Retes Anderson Costa Rica

TBM Maintenance Mechanic; later

listed as Diesel Mechanic Helper

Luis Diego Brenes Perez

Costa Rica

Does not appear on Appendix E;

earlier listed as Erector Operator;

therefore appears to have left

project before Appendix E was

created

Manuel Francisco Artavia

Fonseca

Costa Rica

Does not appear on Appendix E;

listed on earlier Organization Chart

as Loco Operator; therefore appears

to have left project before Appendix

E was created

Mario Alberto Alvarado

Camacho

Costa Rica

Erector Operator Helper; earlier and

later listed as Segment Transport

Beam Operator

Mario Alonso Sanchez

Chaves

Does not appear on Appendix E;

listed on earlier Organization Chart

as Shuttle Conveyor Operator;

therefore appears to have left

project before Appendix E was

created

Mario Flores Brenes

Costa Rica

Yard Labour

Martin Alonso Serrano

Gutierrez

Yard Labour; earlier listed as

Grouting Pump Operator

Marvin Enrique Vasquez

Moya

Costa Rica

Batching Plant Operator

31

Oscar Andres Ramirez Luna

Raul Otoniel Rozo Munoz

Costa Rica

Columbia

Does not appear on Appendix E;

listed on earlier Organization Chart

as Gantry Crane Operator; therefore

appears to have left project before

Appendix E was created

Does not appear on Appendix E or

the earlier Organization Chart;

therefore appears to have left

project before either was created

Rogelio Cortes Huertas

Walter Quiros Monge

Columbia

Costa Rica

Ecuador

Shift Foreman

Grouting Pump Operator

TBM Mechanic

Yandry Eugenio Tuarez

Fortis

[76] The only Latin American worker for whom there are immigration documents who

does not appear on Mr. Ciamei’s list is Allan Fonseca Adams, who is from Costa Rica,

and whom it is reasonable to infer left the project before the complaint was filed and Mr.

Ciamei swore his affidavit. The only other worker who was treated by the Respondents

as a Latin American worker, and who does not appear on Mr. Ciamei’s list, is Luis

Alajandro Montanez Lara, who joined the project later, in October 2006. As set out

above, he is originally from Columbia, but had recently obtained his landed immigrant

status in Canada. For this reason, there are no immigration documents for Mr. Montanez

Lara, only a Letter of Assignment.

[77] The parties’ ASF indicates that, as of the date it was prepared, sometime shortly

before the beginning of the hearing in September 2007, there were 32 Latin American

workers working on the project; eight Latin American workers had left the project by that

time. Those eight workers, and the approximate dates they left the project, as determined

by a review of the incomplete payroll documents entered into evidence, were:

Allan Fonseca Adams

Last shown for pay period: April

2006; and does not appear on next pay

period for which we have records, June

2006;

Mario Alonso Sanchez Chaves

Last pay period: December 17-31,

2006;

32

Manuel Francisco Artavia Fonseca Last pay period: December 3-16, 2006;

Oscar Andres Ramirez Luna

Raul Otoniel Rozo Munoz

Last pay period: January 14-27, 2007;

Last shown for pay period: June 2006;

and does not appear on next pay period

for which we have records, August 13-

26, 2006; other documents appear to

indicate, however, that continued to be

paid until September 1, 2006;

Luis Diego Brenes Perez

Jose Maria Martinez Pena

Cristobal Barboza Rivera

Last pay period: December 17-31,

2006;

Last pay period: January 28-February

10, 2007; and

Last pay period: December 3-16, 2006.

[78]

By the time the third Organization Chart was prepared in December 2007, one

more Latin American worker, Efrain Calderon Araya, had left. We do not have payroll

documents from that period to permit us to determine precisely when he did so.

[79] Latin American workers performed a variety of functions within the project,

including all of the different sorts of specialized tunnelling work, such as Shift Foreman,

TBM Pilot, Erector Operator, Erector Operator Helper, Conveyor Operator, Segment

Transport Beam Operator, TBM Mechanic, TBM Electrician, Grouting Pump Operator,

Loco Operator, Batching Plant Operator, Gantry Crane Operator, Crane Operator, Rail

and Cleaning, and Yard Labour.

[80] From the time they arrived in Vancouver in April and May 2006, until starting in

or about September 2006 when the Europeans began to arrive and a third shift was

implemented, the Latin Americans performed effectively all of the specialized tunnelling

work, working on two shifts. The operation of the TBM requires the coordinated work of

operators, helpers and labourers performing all associated tasks. It also requires

maintenance personnel. The Latin Americans performed all required tasks.

[81] The terms and conditions of employment of the Latin American workers, and

more information about their experience, skills and duties on the Canada Line project, are

addressed throughout the decision, including in considering the rebuttal evidence about

what work the Costa Ricans performed on the La Joya project; in considering two

33

elements of the prima facie case analysis: whether they were treated adversely in the

terms and conditions of their employment, and whether the differences in treatment can

be explained by reference to differences in their experience, skills and duties; and in the

BFOR analysis.

The European workers

[82] From the outset, there were some Europeans working on the Canada Line project.

These included the European managers who have already been listed: Mr. Ciamei, Mr.

Ginanneschi, and Mr. Dell’Ava. It also included a number of other Europeans, about

whom little evidence was introduced, but who performed true managerial or supervisory

functions, work not comparable to the Latin Americans. According to the Organization

Charts prepared by Mr. Ginanneschi, all members of this group were identified as

“Management”. The constitution of the group changed over time as managers came and

left the project.

[83] Members of this group, for which immigration documents were introduced,

include: Leonardo Pia (listed as Maintenance Plan Manager on all Organization Charts);

Miguel Jose Rosinha (listed as Electronic Engineer on all Organization Charts); Luca

Segatto (listed as Tunnel Superintendent on the earlier Organization Chart); Roberto

Perruzza (listed as Mechanic Responsible on the earlier Organization Chart); Giuseppe

Imbesi (listed as Electrical Responsible on all Organization Charts); Edoardo Lanfranchi

(listed as Shift Engineer on Appendix E and the later Organization Chart); Rotella

Ferruccio (listed as Mechanic Responsible on Appendix E); and Gianfranco Casa (listed

as Mechanic Responsible on the later Organization Chart). There are other persons,

identified as belonging to this management group on the Organization Charts, for whom

we have no immigration documents: Carlo Giri (Shift Engineer on all Charts); and Vasili

Fafas (Shift Engineer on later Chart).

[84] Sometime in the summer of 2006, the Respondents decided to add a third shift of

workers, made up of Europeans, to the Canada Line project. The reasons for this

decision were never clearly established in the evidence. Mr. Ciamei testified that there

were problems with the delivery of a key machine part at the beginning, and the start-up

34

of the project was not as fast as they expected. He said they received a letter from their

client, which was not introduced, about delays. As a result, they decided to run three

shifts, which necessitated bringing in the European workers. From the documentary

record it appears that two of these workers arrived in July or August 2006; the remainder

started to arrive in September 2006, and continued to arrive throughout the course of the

project. Mr. Ciamei testified that the third shift began in September.

[85] This group of Europeans performed the same or substantially similar work as the

Latin Americans. In the table below we list, so far as we are able to determine from the

documents introduced, each of the Europeans who performed comparable work to the

Latin Americans. We list their position, as indicated on the Organization Charts, and the

month in which they arrived in Vancouver and started work on the project, as indicated in

their Letters of Assignment. Where payroll information establishes their arrival date, we

indicate that. The positions indicated on the Organization Charts are not necessarily the

same ones indicated on the immigration documents or Letters of Assignment, but we find

they are the most reliable documentary indicator of the work actually performed by the

European workers on the project. Once again, as with the Latin Americans, the

documents before us do not allow us to determine precisely when every European left the

project. Where the documents, including the accommodation records introduced by the

Respondents, do allow us to determine when a European left the project, we indicate that

on the table.

Name

Month arrived on project Position as listed on

as indicated in Letters of

Assignment

Appendix E; position as

listed on earlier and later

Organization Charts given

where different

Where payroll

information establishes

arrival date, also provided

Where known, date of

departure is given in

brackets

Jose Paulo Da Silva Tavares July 2006

First payroll – August 2006

TBM Electrician

(According to

accommodation records,

35

still on project as of

February 2008)

Mirco Giannotti

July 2006

TBM Pilot

First payroll – August 2006

(According to

accommodation records,

still on project as of

February 2008)

Roberto Carlos Verao

Pombal

No Letter of Assignment –

Application for Work

Not listed on Appendix E;

listed on earlier

Permit filed in July 2006, so Organization Chart as TBM

likely arrived in or about

September 2006.

Electrician

Never appears on payroll

documents.

(According to

accommodation records,

left sometime between

January and June 2007)

Juan Marcos Balcells

Morell

September 2006

Not listed on Appendix E;

earlier listed as Segment

Transport Beam Operator

Never appears on payroll

documents.

(According to

accommodation records,

left project sometime

between January and June

2007)

Antonio Fernando Barbedo September 2006

Da Silva

TBM Pilot; earlier listed as

Grouting Pump Operator;

later continued to be listed

as TBM Pilot

First payroll – September

19, 2006

(According to

accommodation records,

still on project in February

2008)

Jose Antonio Collar Blanco September 2006

Loco Operator

First payroll – September

19, 2006

(According to

accommodation records,

still on project in February

36

2008)

Salvador Garcia Gonzalez

September 2006

CHD Mechanic; not listed

on later Organization Chart

First payroll – September

19, 2006

(According to

accommodation records,

left project sometime

between June and

December 2007)

Wilson De Carvalho

October 2006

Shift Foreman; not listed on

earlier Organization Chart

Never appears on payroll

(Testified in March 2008 –

still on project at that time)

Bruno Miguel Ferreira

Ribeiro

October 2006

Grouting Pump Operator;

not listed on earlier

Organization Chart

First payroll – October 17,

2006

(According to

accommodation records,

still on project February

2008)

Antonio Lopez Cozar

Santiago

February 2007

Grouting Pump Operator;

not listed on earlier

Organization Chart

First payroll – February 6,

2007

(According to

accommodation records,

still on project February

2008)

Pedro Filipe Nascimiento

Morais

February 2007

Segment Transport Beam

Operator; not listed on

earlier or later Organization

Charts

First payroll – February 13,

2007

(According to

accommodation records,

left project sometime

between June and

December 2007)

Vitorino Manuel Ribeiro

February 2007

Mechanic Helper; not listed

on earlier or later

Organization Charts;

First payroll – February 13,

2007

Respondents’ oral evidence

37

(Left August 2007)

February 2007

was that he was actually

TBM Maintenance

Mechanic, but his

immigration documents do

not indicate any

qualifications as a mechanic

Tiago Andre De Sousa

Ribeiro

Rail and Cleaning; not

listed on earlier or later

Organization Charts

First payroll – February 13,

2007

(Left August 2007)

February 2007

Jorge Romero Berengena

Erector Operator; not listed

on earlier Organization

Chart

First payroll – February 6,

2007

(According to

accommodation records,

still on project February

2008)

Tommaso Buffa

June 2007

Not listed on any

Organization Chart, but it

appears he worked as a

TBM Mechanic

No payroll documents for

June 2007 forward.

(According to

accommodation records,

still on project February

2008)

Giuseppe Scorzafava

Giuseppe Folino

June 2007

Conveyor Operator; not

listed on earlier

Organization Chart

(According to

accommodation records,

still on project February

2008)

June 2007

Not listed on any

Organization Chart, but it

appears he worked as an

Erector Operator

(According to

accommodation records,

still on project February

2008)

Giuseppe Felice Lopez

June 2007

Conveyor Operator; not

listed on earlier

Organization Chart; listed

on later Organization Chart

(According to

accommodation records,

still on project February

38

2008)

as TBM Mechanic

Guerino Mellea

No Letter of Assignment –

given that Application for

Work Permit filed in May

2007, likely arrived in or

about June 2007

Segment Transport Beam

Operator; not listed on

earlier Organization Chart

(According to

accommodation records,

left project between

December 2007 and

February 2008)

Pere Salellas Payrot

September 2007

Listed on later Organization

Chart as Segment Transport

Beam Operator; not listed

on Appendix E or earlier

Organization Chart

(According to

accommodation records,

still on project February

2008)

Julio Vitor Soares Pereira

Alessandro Zangari

September 2007

Listed on later Organization

Chart as Mechanic Helper;

not listed on Appendix E or

earlier Organization Chart

(Left November 2007)

October 2007

Listed on later Organization

Chart as Conveyor

Operator; not listed on

Appendix E or earlier

Organization Chart

(According to

accommodation records,

still on project February

2008)

Publio Garcia Alvarez

No immigration documents Listed on later Organization

or Letter of Assignment, but Chart as CHD Mechanic

arrived in October 2007

Helper; not listed on

Appendix E or earlier

Organization Chart

(According to

accommodation records,

still on project February

2008)

[86] There are some Europeans about whom very little evidence was introduced, or the

evidence was inconsistent, so that it is difficult to determine if they were managers,

worked elsewhere on the project, or were workers performing work comparable to that

performed by the Latin Americans.

39

[87] Immigration documents were introduced for the following persons falling in this

category:

• Samer Abu Namous (Letter of Assignment says TBM Superintendent; earlier

Organization Chart says Shift Foreman; appears on neither Appendix E nor

later Organization Chart), who arrived in June 2006, and left sometime

between January and June 2007 according to Respondents’ documents about

rent paid for him to live in an apartment;

• Simone Norscia (Letter of Assignment says TBM Hydraulic Mechanic, and

does not appear on any Organization Chart), who arrived in October 2006, the

only documents referring to him are a residential tenancy agreement for an

apartment he apparently resided in, paid for by the Respondents, and a 2007

T-4;

• Marco Gressani (Letter of Assignment says TBM Tunnel Lining

Superintendent, and does not appear on any Organization Chart), who arrived

in June 2007, and is shown as living in an apartment paid for by the

Respondents as late as February 2008;

• Vincenzo di Flora (No Letter of Assignment, and does not appear on any

Organization Chart, his July 2007 Application for Work Permit says TBM

Tunnel Superintendent), it is not clear when he arrived, as there are no

documents indicating the periods or locations at which he resided in

Vancouver, but he did work on the project, as there is a 2007 T-4 for him; and

• Carvalho Monteiro Gilianes (no Letter of Assignment and does not appear on

any Organization Chart), his Application for Work Permit was filed in

January 2008, and the Respondents’ documents indicate he was residing in

the Motel as of February 2008.

[88] In addition, a Vincenzo Golinelli appears on the later Organization Chart as TBM

Maintenance Mechanic. We have no immigration documents or Letter of Assignment for

him. The Respondents’ accommodation records indicate he resided in an apartment paid

for by them since on or before December 2007, and continued to do so as of February

2008. There is also a 2007 T-4 for him. Antonio E. Pinto Rodriguez is another European

for whom we have no immigration documents or Letter of Assignment. He appears on

the later Organization Chart as Electrical Maintenance. There is a 2007 T-4 for him.

There are some other Europeans who apparently worked on the project, but we do not

have sufficient information about them to draw any conclusions about their roles.

40

[89] As in the case of the Latin American workers, the terms and conditions of

employment of the Europeans performing comparable work, and more information about

their experience, skills and duties on the Canada Line project, are addressed throughout

the decision, including in considering two elements of the prima facie case analysis:

whether the Latin Americans were treated adversely in the terms and conditions of their

employment, and whether the differences in treatment can be explained by reference to

differences in the experience, skills and duties of the members of the two groups; and in

the BFOR analysis.

VII THE COLLECTIVE BARGAINING CONTEXT

[90] In this section of the decision, we outline the history of the collective bargaining

relationship between CSWU and the Respondents, so far as it is helpful or necessary to

understanding the issues before us. Further information about the proceedings before the

LRB and its decisions can be found in Appendix B.

Certification, bargaining and the final offer vote

[91] CSWU was certified as the representative of a bargaining unit of employees

employed by SELI Canada and the Joint Venture on June 30, 2006.

[92] The certification covers “employees engaged in tunnelling operations, except

office, sales, engineering and surveying.” The Respondents say that a number of

employees falling within this description, namely the European workers, were excluded

from the bargaining unit as a result of CSWU’s objection to their inclusion in it during

collective bargaining. While the parties’ positions in collective bargaining were not fully

explored in the evidence before us, it is a matter of record that the Europeans were

excluded from the bargaining unit and later from the collective agreement. In the LRB’s

decision dismissing CSWU’s objections to the Respondents’ final offer vote applicaiton,

the LRB stated that the parties agreed in an earlier proceeding before it that the

employees from Europe were not included in the bargaining unit: BCLRB No.

B36/2007, para. 27 (“Final Offer Vote decision”).

41

[93] CSWU and the Respondents met in a number of bargaining sessions in the

summer of 2006, but were not able to negotiate a collective agreement. In late September

of 2006, the Respondents applied to the LRB to have their final collective agreement

offer put to the employees in a vote. The Respondents’ final offer included different

compensation packages (net salary plus food, lodging and travel vs. hourly wage) for

non-residents and Canadian residents. The terms and conditions for Canadian residents

were set out in Schedule A, and included gross hourly rates between $18 and $28 an

hour. The terms and conditions for non-residents were set out in Schedule B, which

indicated they were to continue to receive compensation in accordance with their

employment contracts, ranging from $20,000 to $28,000 US (net). Schedule B also

indicated that the Respondents would pay for: work visas, immigration costs, room,

board, local transportation to and from work, work clothes and toiletries, long distance

telephone charges up to $20 per month, and meals.

[94] CSWU urged the employees to reject the Respondents’ final collective agreement

offer and raised various objections to the vote in complaints to the LRB, including an

allegation that the distinctions in compensation between Canadian residents and Latin

American residents were discriminatory and contrary to the Code, and therefore

constituted an illegal offer. CSWU’s complaint further alleged that the Respondents had

intimidated or coerced the employees into voting for the last offer, and had improperly

“sweetened the pot” during the course of the last offer vote. The final offer vote was held

on October 2, 2006, but the ballot box was sealed and the votes not counted pending

resolution of CSWU’s objections to the vote.

[95] In October 2006, prior to the hearing into CSWU’s objections to the last offer

vote, CSWU sought a strike mandate from the employees in the bargaining unit in order

to assist it in bargaining. The members of the bargaining unit voted against the Union’s

strike action by a significant margin.

42

The Final Offer Vote decision

[96] The hearing into CSWU’s objections to the final offer vote was held by the LRB

in November 2006. In the Final Offer Vote decision, issued February 16, 2007, the LRB

dismissed all of CSWU’s objections to the final offer.

[97] In the Final Offer Vote decision, the LRB addressed three objections. First, that

the Respondents committed an unfair labour practice because they stated to CSWU and

the employees that they would cease operations if the employees rejected the final offer

vote or voted in favour of a strike. Second, that the differences between the

compensation packages of resident and non-resident employees were contrary to the

Code, and therefore constituted an illegal offer. Third, that the Respondents had

“sweetened the pot” between the offer presented to CSWU on September 18, 2006 and

the offer presented in its two final offer vote applications to the LRB, filed on September

19 and 26, 2006.

[98] The first and third objections are of lesser significance for our purposes. In

relation to the first, the Respondents had written a letter to CSWU and its employees in

which they indicated that a strike would force SELI to abandon the project, and had held

meetings in which they told the employees that if SELI had to pay what CSWU was

asking for, it would have to consider closing the project down. The LRB held that, in the

context in which these statements were made, they were not intimidating or coercive, and

therefore did not constitute an unfair labour practice: paras. 31 – 78.

[99] In relation to the third, the LRB held that the Respondents had not made changes

to the last offer after it was presented to CSWU, and therefore had not “sweetened the

pot”: paras. 114 – 127.

[100] The second objection is of greater significance for the purposes of this complaint.

CSWU submitted that the last offer contained a discriminatory clause and was therefore

illegal. The alleged discrimination was as between the Latin Americans, covered by

Schedule B, and the Canadian residents, covered by Schedule A. CSWU also submitted

that the LRB should look at the differences in the rates of pay paid to the Latin American

and European employees, but the LRB declined to do so, holding that the Human Rights

43

Tribunal was the proper forum to determine whether there was any discrimination

generally in the workplace: para. 95.

[101] The LRB turned to a consideration of the terms and conditions of the employment

of the Schedule A and Schedule B employees. It agreed with the Respondents’

submission that the employment of the Latin American employees in Vancouver was

more like a new employment relationship than a temporary transfer of location in the

same employment: para. 97. On this basis, the LRB agreed with the Respondents that it

was appropriate to take into account items such as the cost of accommodation, meals and

airfare in comparing the compensation provided to the Latin American employees to that

provided to the Canadian residents, who did not receive such items: paras. 97 – 99.

[102] The parties agreed that the cost of the accommodation provided to the Latin

American employees was $500 per month, the cost of the meals provided was $25 per

day, and the cost of two economy airfares per year was $3,000, for a total of $18,125 per

year: para. 100.

[103] The LRB compared the range of wages paid to employees in the two groups,

converting both the net yearly salaries paid to Latin American employees in US funds,

and the hourly wages paid to Canadian residents, to Canadian gross salaries. On this

basis, it calculated the Canadians were paid between $37,440 and $58,240 and the Latin

Americans were paid between $46,556 and $57,978, including the $18,125 in benefits

referred to above. The LRB concluded that the Canadians and Latin Americans were

paid comparable amounts: para. 105.

[104] CSWU submitted that the Latin Americans were more skilled than the Canadians,

relying on the information contained in work permits and job titles. The LRB concluded

there was insufficient evidence before it to determine if an individual paid within

comparable ranges had been adversely treated: para. 107. Even taking assumed overtime

earnings into account, the LRB still concluded that employees in the two groups were

paid within the same range: paras. 109 – 110.

[105] The LRB did not decide if the difference in compensation structures was based on

place of origin or place of residence: para. 112.

44

[106] In the result, the LRB dismissed CSWU’s complaint that the final offer vote

contained a provision that was contrary to the Code: para. 113.

Subsequent events

[107] As a result of the LRB’s Final Offer Vote decision, the employees’ vote on the

Respondents’ final offer of a collective agreement was counted. The Respondents say

that over 75% of the employees voted to accept the final collective agreement offer. As a

result, it became the collective agreement between the Respondents and CSWU.

[108] CSWU applied for reconsideration of the LRB’s Final Offer Vote decision, and

this application was rejected by the LRB on August 1, 2007: BCLRB No. B173/2007.

CSWU then sought judicial review of the Reconsideration Panel’s decision, on the basis

of two alleged breaches of natural justice; its petition was dismissed by the court in

January 2008: 2008 BCSC 51.

[109] Concurrent with the final offer vote proceedings before the LRB was another

complaint filed by CSWU on July 4, 2006, alleging a number of unfair labour practices.

Over the course of these LRB proceedings, CSWU alleged that the Respondents had

engaged in a variety of unfair labour practices, including attempting to improperly

transfer employees, unilaterally changing the terms of employment for employees during

the post-certification freeze period, and fraudulently altering the employees’ employment

agreements.

[110] The unfair labour practices complaints were heard by the LRB over the course of

21 days from July 13, 2006 through to September 11, 2007. Ultimately, on April 3, 2008,

the LRB dismissed the majority of CSWU’s allegations, including the allegations of

fraud: BCLRB No. B40/2008. An application for reconsideration of this decision

remains pending.

[111] On June 1, 2007, a group of employees in the bargaining unit filed an application

for decertification of the Union. This required that at least 45% of the employees in the

bargaining unit to indicate in writing that they no longer wanted CSWU to represent them

in collective bargaining. The decertification vote was held on June 11, 2007.

45

[112] CSWU challenged the decertification application. The ballots were sealed

pending resolution of CSWU’s challenges, and particularly the resolution of the fraud

allegations made in the then-pending unfair labour practice complaints: BCLRB No.

B232/2007.

[113] The Respondents applied to adjourn the hearing before us pending resolution of

the then-pending decertification application before the LRB. In an oral decision rendered

September 24, 2007, the panel denied the Respondents’ application for an adjournment.

[114] On June 24, 2008, after the conclusion of the hearing before us, the LRB decided

to hold a hearing into CSWU’s objections to certain votes being counted: BCLRB No.

B100/2008. The decertification vote was counted, and the Respondents advised us that

on July 7, 2008, the LRB decertified CSWU. The Respondents indicated they were

prepared to make submissions about the decertification, should the Tribunal so desire.

We did not request submissions from the parties about the decertification, as the fact that

CSWU was decertified does not affect the issues now before us for decision.

The effect of the Final Offer Vote decision on the proceedings before the Tribunal

[115] As indicated above, the Respondents applied for an order prohibiting CSWU from

relitigating the issue of whether the terms of compensation contained in the collective

agreement for the Latin American and Canadian resident employees discriminate against

the Latin American workers. In CSWU No. 1, the Estoppel decision, the panel granted

the application.

[116] As set out in our reasons, the parties agreed before us that the first two criteria to

establish issue estoppel were present: the LRB’s decision was final, and the parties or

privies to that decision were the same as those now before the Tribunal: para. 22. We

concluded that the third criterion was also present, in that the LRB had decided

substantially the same question as was raised in CSWU’s original complaint to the

Tribunal: whether the difference in the compensation structures in Schedules A and B

discriminated against the Latin American workers as compared to Canadian workers:

para. 24.

46

[117] We then considered whether we should exercise our discretion not to apply the

doctrine of issue estoppel. We concluded that fairness to the parties and the public

interest in the finality of proceedings both suggested that the doctrine should be given

effect: paras. 42 – 49.

[118] The effect of the Estoppel decision is that CSWU cannot relitigate the question of

whether the Latin Americans were discriminated against by the Respondents in

comparison to the Canadian resident workers. As a result, the complaint that continued

before us is that the Latin Americans were discriminated against in comparison to the

Europeans workers.

[119] While the Respondents vigorously defended themselves against the complaint that

they discriminated against the Latin American workers as compared to the European

workers, they did not contest the Tribunal’s jurisdiction to hear and determine that

complaint. As the LRB recognized in its Final Offer Vote decision, the Tribunal “is the

proper forum for a determination of the issue of whether there is any discrimination

generally in the workplace”: para. 95.

[120] The Latin American and European workers, while they come from and normally

reside in other countries, and may work in locations around the world, lived and worked

in Vancouver, British Columbia for periods of up to two or more years. The Respondents

who employed them bid on and obtained a contract to construct an important public work

project in this province, the tunnel on the Canada Line project. All three Respondents

appear to be incorporated in British Columbia – there is no suggestion that they are not.

While the parent company of one, SELI SPA, performs tunnelling worldwide, this project

was in British Columbia. The Respondents, while doing business in this province, and

their employees, while living and working in this province, are subject to and are entitled

to the protections of the laws in effect in this province, including the Human Rights Code.

VIII APPLICATION TO CALL REBUTTAL EVIDENCE AND RELATED

FINDINGS OF FACT

[121] Having set out the parties’ ASF, and summarized the relevant contextual facts

about SELI, the project and the employees working on it, and the collective bargaining

47

relationships between the parties, we turn to address CSWU’s application to call rebuttal

evidence, and make our findings of fact about the matters related to it. These findings

also inform our later conclusions.

[122] As already indicated, one of the issues we were required to address in the course

of the hearing was CSWU’s application to call rebuttal evidence. In a letter decision

dated March 5, 2008, the panel communicated its decision to grant the application, stating

that our reasons would follow in the final decision.

[123] In this part of the decision, we set out the procedural and evidentiary history

relevant to the application to call rebuttal evidence, provide reasons for our decision to

allow CSWU to call rebuttal evidence, and make findings of fact with respect to the

matters related to the rebuttal evidence.

Procedural background to the application

[124] The possibility that CSWU might seek to call rebuttal evidence was first raised by

CSWU in a November 19, 2007 written submission in response to the Respondents’

applications for an adjournment or stay. Its relevance, at that stage, was with respect to

how long the hearing would take to complete, and ensuring that all evidence from

members of the Complainant Group could be heard before they left the country at the

conclusion of the project.

[125] The possibility of CSWU calling rebuttal evidence was also discussed in oral

submissions on December 5, 2007, just before CSWU closed its case. At that time, the

potential for rebuttal evidence arose because of the late production of documents and

notification of witnesses by the Respondents to CSWU. The Respondents objected to

any possibility of CSWU calling rebuttal evidence, submitting that this would be an

impermissible attempt by CSWU to split its case.

[126] By February 15, 2008, the rebuttal evidence question had crystallized, with

CSWU indicating that it would be seeking to call evidence to rebut what Mr. Gencarelli

had just testified to about the work performed by the Costa Rican workers on the La Joya

project. With the agreement of the parties, the panel directed the parties to provide

48

written submissions with respect to whether CSWU should be permitted to call rebuttal

evidence. The submissions were filed between February 25 and March 4, 2008.

[127] CSWU applied to call rebuttal evidence to refute the Respondents’ evidence that

Costa Rican members of the Complainant Group did not operate or perform maintenance

on any TBM-related machinery on the La Joya hydroelectric project in Costa Rica. This

evidence was proferred by the Respondents in support of their position that members of

the Complainant Group had less experience and skills than members of the European

comparator group.

Evidentiary background to the application

[128] The evidentiary background to the application begins with the Respondents’

response to the complaint, filed September 20, 2006. In it, they attributed any differences

in the terms and conditions of employment between the Latin American and Canadian

resident employees to their usual place of residence. This was before the amendment to

the complaint alleging discrimination as between the Latin American and European

employees. The Respondents stated that “the non-resident [i.e. Latin American] workers

have specialized skills in relation to the use and operation of SELI’s tunnel boring

machine (TBM) which the resident workers do not possess”.

[129] Included with the Respondents’ application to dismiss the complaint, which was

filed at the same time as their response to the complaint, was the affidavit from Mr.

Ciamei, SELI’s Project Manager on the Canada Line project, and as such the

Respondents’ senior manager on site. Mr. Ciamei swore that:

…

4.

Tunnelling of this kind is very specialized work requiring employees

with the requisite experience and expertise. Workers with these

skills are very difficult to find. Such workers are often not available

in the various areas of the world where SELI SPA runs projects.

5.

… SELI SPA offered a number of SELI employees with tunnelling

expertise, who were then working on projects in Central and South

America, an opportunity to work on the Canada Line project in

Vancouver …

49

6.

All of the non-resident employees hired for the Canada Line project

have been employed by SELI SPA or its subsidiaries on other SELI

tunnelling projects. All have specialized tunnelling expertise. SELI

Canada recruited the non-resident employees with the tunnelling

expertise they required.

They have long-term employment

relationships with the SELI group and regularly work all over the

world…

…

8.

… The non-resident employees on the Canada Line project perform

different work from the resident employees, as they have different

skills and expertise. In particular, the non-resident workers have

specialized skills in relation to the use and operation of SELI’s

tunnel boring machine (TBM) which the resident workers do not

possess. Most of the resident workers have been hired as labourers,

although the resident employees also include mechanics, electricians

and equipment operators.

[130] In summary, Mr. Ciamei swore that all of the non-resident employees, including

the Latin Americans, and including within that group, the Costa Ricans, have specialized

tunnelling expertise, specialized skills in the use and operation of SELI’s TBM, and long-

term employment relationships with SELI, regularly working for SELI all over the world.

Further, Mr. Ciamei swore that all non-resident employees, including the Costa Ricans,

performed specialized work on the Canada Line project, which was different from the

non-specialized labour work performed by the Canadian residents. As set out above, Mr.

Ciamei confirmed in his evidence before us that the contents of his affidavit are true.

[131] The parties entered into the ASF, which included the Books of Documents

containing immigration documents for most members of the Complainant Group and the

European workers. The immigration documents include applications for work permits

produced and submitted by SELI to Canada Citizenship and Immigration. The Books of

Documents also included Letters of Assignment for most workers on the project. The

Letters of Assignment constitute the written contract of employment between the

Respondents and the workers, signed by Mr. Ciamei and the individual workers after they

arrived in Canada. In some cases, there were also earlier Letters of Assignment, signed

while the workers were still abroad, which had different terms and conditions of

employment.

50

[132] The work permit applications all refer to the applications being made “pursuant to

the C12 category applicable to Intra-company Transferee – Senior Manager or

alternatively Specialized Knowledge Worker”. They all refer to the work experience of

the members of the Complainant Group. Generally, the Costa Ricans are stated to have

two or more years of experience with the TBM, including in many cases two or more

years as an operator of various specific kinds of TBM-related machinery, such as Mortar

Pump, Segment Crane, Erector, and Muck Loader. The applications consistently refer to

the applicants, all members of the Complainant Group, as being ideally suited to occupy

various named positions in the construction of the Canada Line project.

[133] The work permit application for Luis Alberto Retes Anderson is reasonably

representative of the applications for the Costa Ricans. Dated March 30, 2006, and

signed by Pietro Favaretto, SELI’s Administrator and Financial Manager on the Costa

Rica project, it states:

Mr. Retes Anderson’s application is made pursuant to the C12 category

applicable to Intra-company Transferee – Senior Manager or alternatively

Specialized Knowledge Worker. We submit that Mr. Retes Anderson

qualifies for a work permit based on the following considerations:

a)

He will be transferred to SELI Canada’s office in Vancouver, British

Columbia to assume the specialized knowledge position of T.B.M.

Cutterhead Mechanic from SELI’s branch in Costa Rica, Central

America, where he currently holds the position of T.B.M. Cutterhead

Mechanic;

b)

c)

He has been employed with the SELI organization for nearly 3 years;

Mr. Retes Anderson is currently employed in the specialized

knowledge position of T.B.M. Cutterhead Mechanic. He is

responsible for the maintenance of the cutterhead wear, assisting in

troubleshooting of general matters concerning the cutterhead and

replacing the broken or worn blades;

d)

… the joint venture company requires specialists T.B.M.’s

Cutterhead Mechanics with experience in similar projects. SELI

Canada and SNC-Lavalin do not possess this specialized expertise.

In addition, proprietary knowledge of the SELI organization’s

operations and methodologies are required in order to effectively

execute this major project;

51

e)

Mr. Retes Anderson has been identified as ideally suited to occupy

the position of T.B.M. Cutterhead Mechanic on SELI Canada and

SNC-Lavalin’s joint venture. He possesses experience on tunnels

bored by T.B.M., and has participated in large-scale projects. His

most recent position with SELI in Costa Rica was to act as T.B.M.

Cutterhead Mechanic at La Joya hydroelectric project. In this

position, he was responsible to ensure the correct and safe

maintenance of the T.B.M.’s cutterhead wear, assisting in

troubleshooting of general matters. This experience is directly

applicable to the position of T.B.M. Maintenance on the RAV

project, and is not readily available in Canada;

f)

While in Canada, Mr. Retes Anderson will participate to the

assembly of the EPB T.B.M. and then for the day-to-day operations

of the RAV project, ensuring the proper maintenance of the

cutterhead wear…

…

The Applicant

Mr. Retes Anderson possesses nearly 3 years of professional experience

with T.B.M. and almost 2 years as T.B.M. Cutterhead Mechanic. He has

been with the SELI organization since 2003, and has occupied positions

increasing in responsibility to currently occupy the position of T.B.M.

Cutterhead Mechanic. He has contributed to large-scale projects for

clients in Costa Rica. In addition, the projects on which Mr. Retes

Anderson has offered his services have had significant public benefit. This

diverse experience will be of significant benefit to SNC-Lavalin and SELI

Canada as it executes its massive public transportation project in British

Columbia.

[134] Other applications are similar in tone and content. For example, Mr. Favaretto

also signed the March 7, 2006 application for a work permit for Cristhian Leiton

Calderon to work as an Erector Operator. It states that Mr. Leiton Calderon currently

holds the Specialized Knowledge position of Erector Operator, and that he has been

employed with SELI for more than two years. Mr. Leiton Calderon is said to have been

identified as ideally suited to occupy the same position on the Canada Line project. The

application says that in his most recent position with SELI he was responsible for

positioning precast segments in order to create concrete rings over the tunnel lining, and

that that experience is directly applicable to the position as Erector Operator on the

Canada Line project, and not readily available in Canada. Under the heading “The

52

Applicant”, Mr. Leiton Calderon is said to possess over two years professional

experience with the TBM, and one and a half years experience as Erector Operator.

[135] Also included for some of the Latin American workers are declarations from Mr.

Antonini to Citizenship and Immigration Canada. Mr. Antonini is the General Director

for all jobsites for SELI worldwide, and he testified that he has specific responsibility for

Human Resources. For example, in a letter dated March 3, 2006, Mr. Antonini declared

that Mr. Retes Anderson currently held the position of TBM Cutterhead Mechanic. In a

similar letter of the same date, he declared that Douglas Barboza Cedeno was currently

employed as a TBM Mortar Pump Operator.

[136] The Respondents did not provide an opening at the outset of the hearing. At no

time in CSWU’s case, including in their cross-examination of Anthony Raul Gamboa

Elizondo, Douglas Barboza Cedeno, Jojans Sanchez Chaves, Martin Alonso Serrano

Gutierrez, Cristhian Leiton Calderon and Luis Alajandro Montanez Lara, all members of

the Complainant Group called by CSWU as part of its case in chief, did the Respondents

contest the experience of the Latin American employees. In brief, those witnesses’

experience, as stated by SELI in their work permit applications, was as follows:

Gamboa Elizondo

Barboza Cedeno

One year professional experience with TBM, and

more than six months as muck loading operator

Almost two years professional experience with

TBM, and more than one year as TBM mortar pump

operator

Sanchez Chaves

Serrano Gutierrez

Over two years professional experience with TBM,

and one and half years as TBM erector operator

Almost two years professional experience with

TBM, and more than one year as TBM mortar pump

operator

Leiton Calderon

Over two years professional experience with TBM,

and one and half years as TBM erector operator

There is no work permit application for Mr. Montanez Lara as he is now a Canadian

resident.

53

[137] Further, Mr. Gamboa Elizondo, Mr. Sanchez Chaves, Mr. Serrano Gutierrez and

Mr. Leiton Calderon all testified in direct about their experience on the La Joya project in

Costa Rica. Again, this evidence was not challenged in cross-examination.

[138] On November 24, 2007, the Respondents wrote a letter to the Tribunal in relation

to the then pending applications for a stay or adjournment. In that letter, the Respondents

stated that their response to the amended complaint was the same as their response to the

original complaint, i.e. compensation is based upon SELI’s international pay practices.

[139] On December 6, 2007, the Respondents provided their opening statement. It

focussed on SELI’s compensation structure as the justification for the differences in

compensation paid to the Latin American and European workers. It states that “the

exclusive basis for the difference in compensation that is the subject of this complaint is

the fact that labour market rates actually differ from place to place and time to time.”

The Respondents’ opening statement contains no suggestion that differences in

compensation are based on differences in experience or skills.

[140] According to CSWU, the Respondents initially indicated to it that Mr. Antonini

would be their sole witness on the merits of the complaint, and that he would speak to

SELI’s international compensation structure. Mr. Antonini testified on December 6 and

7, 2007. Mr. Antonini did testify about SELI’s international compensation structure,

among other things. In particular, he gave some general evidence in direct examination

about what the Costa Rican employees had done on the La Joya project, referring to their

experience in tunnelling being two years working with a kind of TBM which he

described as “not so similar to this one, a little bit different” from that used on the Canada

Line project, and to the more critical work on the La Joya project having been performed

by specialists from Italy, Columbia and Ecuador.

[141] By way of explanation, SELI used a “double-shield” TBM on the La Joya project,

and an “EPB” TBM on the Canada Line project. SELI knew when it bid on the Canada

Line project that it would be using an EPB TBM, and that the Costa Rican employees had

only worked on the double-shield TBM. Apparently, this was not seen as an impediment

to using the Costa Rican workers to assemble the EPB TBM and to perform the

tunnelling work with it.

54

[142] The Respondents’ second witness on the merits of the complaint, Mr.

Ginanneschi, started to testify on December 7, and continued to testify on January 21, 25

and 28, and February 13, 2008. Mr. Ginanneschi was employed by SELI as the TBM Site

Manager on the Canada Line project; he had no involvement in the Costa Rican project.

[143] Mr. Ginanneschi’s evidence was wide-ranging. In direct examination, he was

questioned about his understanding of the previous experience of the various employees

working on the Canada Line project. This evidence was hearsay, as it was based upon

what Mr. Ginanneschi said others, in particular Mr. Gencarelli, Mr. Pellegrini, and the

Costa Rican workers themselves, had told him about their experience. Mr. Gencarelli

was SELI’s Production Manager, and Mr. Pellegrini was its Project Manager, on the

Costa Rican project. As such, Mr. Pellegrini was Mr. Gencarelli’s superior, with Mr.

Pellegrini’s role being roughly equivalent to Mr. Ciamei’s, and Mr. Gencarelli’s roughly

equivalent to Mr. Ginanneschi’s, on the Canada Line project. CSWU objected to Mr.

Ginanneschi’s testimony on the basis of its hearsay nature, and the panel overruled the

objection, ruling that the evidence would be admitted, with the panel ultimately

determining what, if any weight, it should be accorded.

[144] In general, Mr. Ginanneschi testified that none of the Costa Ricans had operated

TBM-related machinery on the La Joya project. He testified that neither any of them, nor

anyone else, told him that they had operated such machinery on that project. Mr.

Ginanneschi compared the previous experience and the current skills and duties of the

European and Latin American workers, and consistently testified that the Europeans were

superior.

[145] In cross-examination, the inconsistencies between his evidence about the Costa

Rican employees’ previous experience, and the information contained in the immigration

documents, was put to Mr. Ginanneschi. Mr. Ginanneschi denied ever having seen the

immigration documents. While he would not say that the documents misrepresented the

workers’ experience, stating that they were not his documents and he was not responsible

for them, he continued to maintain his evidence that, contrary to what is clearly stated in

those documents, the Costa Ricans had no experience operating TBM-related machinery.

Even when it was put to him that, in some cases, he assigned workers to perform the very

55

jobs which the immigration documents indicated they had previously performed, Mr.

Ginanneschi continued to maintain that he had no knowledge that the Costa Ricans had

ever performed those jobs before.

[146] In the midst of Mr. Ginanneschi’s direct evidence, on January 18, 2008, the

Respondents wrote CSWU, expanding their witness list, stating that their “possible

witnesses included Piero Angioni, Antonio Dambra, Romeo Gencarelli, Chris Wates,

Andrea Ciamei, Gabriele Dell’ava, as well as any of the employees”.

[147] Mr. Gencarelli testified on February 15, 2008. Mr. Gencarelli testified that none

of the Costa Rican members of the Complainant Group had operated or maintained TBM-

related machinery on the La Joya project, of which he was the Production Manager. The

substance of his testimony was that none of the Costa Rican employees had fixed jobs;

they did manual labour “cleaning” the tunnel and the TBM, removing debris created by

the tunnelling process. He was asked about a list of Costa Rican employees, including

Anthony Raul Gamboa Elizondo, Douglas Barboza Cedeno, Jojans Sanchez Chaves, and

Martin Alonso Serrano Gutierrez, among others, and denied that they had operated

equipment, saying that they did manual labour only. He testified that Cristhian Leiton

Calderon worked as an Erector Operator for two months, but was dismissed due to

problems he created. He testified that Luis Alberto Retes Anderson, in addition to

cleaning the tunnel, may have assisted the mechanic, cleaning the workshop.

[148] CSWU cross-examined Mr. Gencarelli at some length, challenging his evidence

about what the Costa Rican employees had done on the La Joya project. It was put to Mr.

Gencarelli that Mr. Favaretto had itemized the Costa Rican employees’ experience

operating or maintaining TBM machinery in the immigration documents he prepared. In

direct, Mr. Gencarelli had testified that he had nothing to do with the preparation of those

documents, and had not discussed them with anyone, including Mr. Favaretto. In cross-

examination, he denied that at least some of what Mr. Favaretto had written, for example

about Mr. Retes Anderson, was true. He also specifically denied that Mr. Leiton

Calderon had been employed as an Erector Operator for at least six months, saying it was

for only two months, and denied that what Mr. Favaretto had written about Mr. Leiton

Calderon holding the position for one and half years was true.

56

[149] Mr. Gencarelli specifically denied that what Mr. Antonini had written in his

declaration to Citizenship and Immigration Canada about Mr. Retes Anderson being

employed as a TBM Cutterhead Mechanic was true. Mr. Gencarelli gave similar

evidence about the remainder of the Costa Rican employees, disagreeing with both the

employees’ evidence and the information in the immigration documents about their

experience.

[150] In support of its application to call rebuttal evidence, CSWU submitted that the

Respondents, through Mr. Gencarelli’s evidence, had sought to introduce a further

defence to the complaint, namely, that the differences in pay between the Europeans and

Latin Americans was attributable to differences in experience. CSWU submitted that it

could not reasonably have anticipated this evidence, given the representations made by

the Respondents in their response to the complaint and their application to dismiss; the

immigration documents contained in the ASF; the lack of cross-examination of its

witnesses about these issues; and the lack of an opening statement. Further, CSWU

submitted that there would be no unfairness to the Respondents if the proposed rebuttal

evidence were permitted.

[151] CSWU raised concerns about the timing of the rebuttal evidence. In its

application, it indicated that it was expected that the TBM would “break through”, that is,

come to the surface, thereby bringing the tunnelling work to an end, on March 1 or 3,

2008. It anticipated that the workers would be required to dismantle the TBM for about

two weeks, following which they would leave the country. CSWU therefore sought an

order that the rebuttal evidence be called on March 10, 2008, the next scheduled hearing

day, and that, if any necessary witnesses were to depart before then, their evidence be

obtained by other means.

[152] A flurry of correspondence followed the application. The Respondents sought,

and received, a list of the proposed rebuttal witnesses and further clarification of the

scope of the proposed evidence. In respect of the latter, CSWU advised that each of the

workers “would testify as to their work experience on the La Joya Costa Rican project,

and particularly any equipment they operated on that project … [and that they]

anticipate[d] that the evidence will be that the great majority of the Costa Rican workers

57

had TBM operating or maintenance experience consistent with what was put to Mr.

Gencarelli on cross-examination”.

[153] On March 3, 2008, CSWU advised the Tribunal in writing that the TBM broke

through on March 2, and that 12 named employees in the Complainant Group were

advised shortly thereafter that they were being laid-off, and would be departing on March

6. CSWU stated that when the laid-off employees went to the project office they were

told they could leave Canada on either March 6 or March 13, but that in any event they

would have to be out of the Motel by March 6. The employees had no other

accommodation arrangements, and the majority chose to leave on March 6. CSWU

stated that this was contrary to what it understood the Respondents’ assurances to be, and

asked the panel to reconvene to hear the rebuttal evidence before March 6. CSWU listed

six proposed rebuttal witnesses.

[154] On March 4, 2008, the Respondents wrote the Tribunal, refuting some of the

assertions made in CSWU’s correspondence. The Respondents stated that they did not

tell the employees they had to leave the Motel before March 13, and that they expressly

told them they could stay until March 13 if they wanted. They expressed upset about

what they perceived as CSWU’s false allegations. They said that they had made clear to

CSWU that they would continue to pay the employees’ wages and provide them

accommodation, and arrange for a flight after March 10, and suggested that, if there had

been any miscommunication, CSWU should have contacted the Respondents to clarify

the situation.

[155] On March 4, the panel wrote the parties about this exchange, advising them that

we expected them to be able to resolve these issues between themselves. Without making

any findings or rulings, we suggested that, if there was concern that some employees

might not be available to testify on March 10, the parties should take the steps necessary

to preserve their evidence, by examination before a court reporter. We stated that, if we

ultimately ruled that CSWU could call rebuttal evidence, the video deposition or

transcript would be admitted. We told the parties that if they required any directions or

orders, we would make ourselves available for an immediate telephone conference. We

58

closed by reiterating the schedule for the completion of submissions on the application to

call rebuttal evidence.

[156] No telephone conference was requested or held. In accordance with the

submission schedule, the Respondents filed their response to the application later on

March 4. They opposed the application, submitting that they would be denied a fair

hearing were it to be granted. They submitted that evidence about the skills and

experience of the members of the Complainant Group was an essential element of

CSWU’s case, and should have been part of its case in chief. They referred to having put

CSWU on notice that it would not be sufficient to call evidence from only a few

employees on this point. They agreed that their primary defence to the complaint was

based on SELI’s compensation practices, but submitted that the comparative experience

and skills of the European and Latin American workers was also relevant, and that

CSWU should have recognized that in putting in its case.

[157] CSWU replied later on March 4. It submitted that the issue raised by the

proposed rebuttal evidence was not whether the Latin Americans and Europeans do the

same jobs or have the same skills, matters it conceded were challenged by the

Respondents in cross-examination of its witnesses. Rather, the issue raised by the

rebuttal evidence was whether the Costa Rican employees had operated TBM-related

machinery on the Costa Rican project, a matter upon which its witnesses had not been

challenged.

[158] On March 5, 2008, before a court reporter, the parties took the evidence of three

witnesses: Jojans Sanchez Chaves, Ernesto de la Trinidad Camacho Cordero, and Juan

Jose Ruiz Mora. That day, the Respondents wrote the Tribunal to state that the scope of

the rebuttal evidence taken went beyond that identified by CSWU in its submissions.

[159] As indicated above, on March 5, we provided the parties with a letter decision that

CSWU would be “permitted to call evidence in rebuttal to the evidence given by Mr.

Gencarelli with respect to the work performed by certain members of the Complainant

Group on the La Joya project in Costa Rica”. We indicated that the issues raised in the

Respondents’ March 5 letter about the scope of the rebuttal evidence were distinct, and

59

directed the parties to make written submissions about them. We gave certain other

directions about how the additional rebuttal evidence would be heard.

[160] The parties provided the requested submissions on March 6 about the

Respondents’ objections to the scope of the rebuttal evidence.

[161] On March 7, the panel provided another letter decision, this one about the scope

of the rebuttal evidence. We identified two aspects to the questions asked in rebuttal to

which the Respondents objected: first, there were questions about the work performed by

the Costa Rican members of the Complainant Group in Costa Rica; and second, there

were questions asked in anticipation of Mr. Favaretto’s and Mr. Pellegrini’s evidence,

which had not yet been given.

[162] In respect of the first issue, relating to the work performed by the Costa Ricans on

the La Joya project, we stated that our previous decision was clear, and directed the

parties to attempt to agree about which, if any, questions extended beyond the scope of

the order, failing which we would make those determinations.

[163] In respect of the second issue, relating to questions asked in anticipation of Mr.

Pellegrini’s and Mr. Favaretto’s evidence, we noted CSWU’s concession that these

questions were beyond the scope of our earlier decision. Given that it was impossible to

rule on the potential admissibility of the answers to these questions before we heard from

Mr. Favaretto and Mr. Pellegrini, we reserved on this issue, again with the direction that

the parties were to attempt to resolve this issue, failing which we would make the

necessary determinations.

[164] The hearing resumed on March 10, 2008, at which time CSWU called three more

rebuttal witnesses: Anthony Raul Gamboa Elizondo, Yandry Eugenio Tuarez Fortis and

Luis Alberto Retes Anderson. The Respondents objected to the scope of the evidence

given by Mr. Gamboa Elizondo in anticipation of Mr. Favaretto’s and Mr. Pellegrini’s

evidence, in response to which we reiterated what we had earlier told the parties in our

letter of March 7. We therefore heard the evidence, reserving on its admissibility.

[165] Ultimately, the parties were able to agree about the scope of the rebuttal evidence

which was given before the court reporter and at the resumption of the hearing, and, on

60

April 9, 2008, submitted certified transcripts and later DVDs of the video depositions,

redacted in accordance with counsels’ agreement.

[166] In general, the six rebuttal witnesses testified about the work they had performed

and had seen other Costa Rican members of the Complainant Group perform on the La

Joya project. They all disagreed with Mr. Gencarelli’s evidence that, with one or two

exceptions, none of the Costa Ricans had operated or maintained TBM-related

machinery.

[167] Jojans Sanchez Chaves testified that, on the La Joya project, he worked as the

operator of the train unloader, referred to in Spanish as the “carga vagones”, for a year,

and also worked as a helper to the Erector Operator, the TBM Mechanic, and the Gravel

Pump Operator. Ernesto de la Trinidad Camacho Cordero testified that he worked as the

operator of the carga vagones, then as the Erector Operator Helper, and finally as the

Erector Operator, the last for about eight months. Juan Jose Ruiz Mora testified that he

worked as an Erector Operator Helper for the first 11 months, and then as a Locomotive

Operator. Anthony Raul Gamboa Elizondo testified that he worked for 11 months, doing

a variety of jobs, including injections, perforations, and supervising a small group

working with cement. Others referred to this as being the Grout Pump Operator, which

we accept is accurate. Yandry Eugenio Tuarez Fortis testified that he worked for two

years as a TBM Mechanic. Luis Alberto Retes Anderson testified that his job was to

assemble the cutterhead blades, and that he worked both in the tunnel and mainly in the

workshop. He said that his title would be mechanic assistant, because, while he knew

how to do the job, he lacked the papers to have the title of mechanic.

[168] All six witnesses testified about their observations of other workers on the La

Joya project. Allan Fonseca Adams, Gabriel Esquivel Garcia, Juan Jose Ruiz Mora,

Manuel Francisco Artavia Fonseca and Mario Alonso Sanchez Chaves were identified as

Loco Operators. Cristobal Barboza Rivera and Jose Luis Barboza Cedeno were identified

as Segment Transport Beam Operators, referred to in Spanish as the “Astronave”. Efrain

Calderon Araya, Douglas Barboza Cedeno and Jose Antonio Barboza Sanchez were

identified as Gravel Injector or Gravel Pump Operators. Felipe Zuniga Perez, Marvin

Enrique Vasquez Moya, Oscar Andres Ramirez Luna and Walter Quiros Monge (the

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latter two identified as being in charge of a group) were identified as working in cement

injection, which we understand to be essentially the same as a Grout Pump Operator.

Franklin Mora Gamboa was identified as a Train Unloader. German Cordero Camacho,

Mario Alberto Alvarado Camacho and Jojans Sanchez Chaves (he was also identified as a

Labourer, Wagon Loader, and Erector Operator) were identified as Erector Operator

Helpers. Luis Diego Brenes Perez (after he returned from an injury, he later worked in

the mechanic workshop) and Ernesto de la Trinidad Camacho Cordero were identified as

Erector Operators. Mario Flores Brenes was identified as being in charge of sending

materials into the tunnel, and as a replacement Locomotive Operator.

[169] Finally on this subject, Mr. Favaretto, Mr. Pellegrini and Mr. Ciamei all

subsequently testified about the immigration documents, in which SELI had made

representations about the work performed by the Costa Rican employees in Costa Rica.

The substance of their testimony, as it relates to the question of what the Costa Rican

employees did on the La Joya project, and the Respondents’ assertions about that

experience on the immigration documents, is as follows.

[170] Mr. Favaretto prepared the immigration documents, and said that he did so

carefully, and that they were truthful so far as he is aware. Mr. Favaretto worked some

distance from the jobsite in La Joya, and had no direct knowledge of what the workers

did. Mr. Pellegrini was the Project Manager on the La Joya project, and had direct

knowledge of what the workers he did. Mr. Pellegrini did not prepare the immigration

documents, but assisted Mr. Favaretto by giving him the information necessary for him to

do so. According to Mr. Favaretto, Mr. Pellegrini explained to him in detail the functions

of the workers.

[171] Regarding communications between the SELI managers in Costa Rica and those

responsible for the Canada Line project, there is no evidence that any of the Vancouver

managers spoke to Mr. Favaretto. Mr. Ciamei testified that he wanted the best workers

available from the Costa Rican project, and talked to Mr. Pellegrini about that. Some of

the best workers were following Mr. Pellegrini to a project in Brazil, and Mr. Ciamei did

not talk to Mr. Pellegrini about the specifics of the Costa Ricans’ experience.

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[172] Mr. Pellegrini felt that the workers sent to Vancouver were of good quality. He

testified that the La Joya project was a success, he was very happy with the productivity

of the Costa Rican employees, and the project depended on the quality of the employees.

[173] Mr. Ciamei testified that he never spoke to Mr. Gencarelli. Mr. Gencarelli was

not asked about any conversations with Mr. Ciamei.

[174] Mr. Gencarelli said that he talked with Mr. Ginanneschi. His evidence about the

timing of their conversations and what they talked about was vague, but in the end he

testified that they had no discussions about the background and experience of the Costa

Rican workers, only about how many workers wanted to come to Vancouver and if they

were ready to do so. Mr. Ginanneschi, on the other hand, testified that he spoke in detail

with both Mr. Gencarelli and Mr. Pellegrini about the workers on the Costa Rica project,

including their experience and qualifications. Mr. Pellegrini was not asked about any

discussions he may have had with either Mr. Ciamei or Mr. Ginanneschi.

[175] Mr. Ciamei had no involvement in preparing the immigration documents, but was

involved in the immigration process. He has since reviewed the immigration documents,

and believes they are true.

Reasons for allowing the application

[176] We ruled that CSWU could introduce the proposed rebuttal evidence because we

were persuaded that CSWU would be denied a fair hearing if it was not allowed to

introduce that evidence. CSWU could not reasonably have anticipated that the

Respondents would lead evidence that the Costa Ricans did not operate or maintain

TBM-related machinery on the Costa Rican project, nor that they would seek to rely on

that evidence as part of the explanation or justification for the differential pay rates on the

Canada Line project.

[177] The Respondents did not effectively put CSWU on notice prior to the close of

CSWU’s case that the Costa Ricans’ alleged lack of TBM-related experience would form

part of their defence to the complaint. In particular, the Respondents, despite being given

the opportunity to do so, did not file an amended response to the complaint after the

allegations about the European workers were added, nor did they make an opening

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statement at the outset of the hearing. While a respondent is not required to make an

opening statement at the outset of a hearing, the failure to do so in this case meant that

CSWU had no notice of the Respondents’ intention to rely on this defence. One would

have expected that the Costa Ricans’ alleged lack of TBM-related experience, and the

defence which rests upon it, would have been a part of both the Respondents’ amended

response and opening.

[178] The Respondents point to certain comments made by their counsel in the hearing

on October 1, 2007, after counsel for CSWU had made its opening statement. The

comments were specifically said not to be opening. In those comments, counsel indicated

that it would be the Respondents’ position that the Europeans have greater skills and

experience. We agree with CSWU that the Respondents are attempting to have it both

ways, by expressly reserving on their opening until after CSWU closed its case, and later

seeking to rely on counsel’s earlier comments. A party is entitled to one opening only,

and in this case, the Respondents chose not to make an opening until after CSWU closed

its case.

[179] Further, CSWU is correct in its submission that the comments from counsel relied

upon by the Respondents in support of their opposition to the application to introduce

rebuttal evidence are contradicted by the ASF, which the parties introduced at the outset

of the hearing. Paragraph 31 of the ASF lists 13 Latin American workers, including nine

from Costa Rica, and states that the parties agree that “they perform substantively the

same work” as the other employees with the same job title on the Organization Chart.

Those other employees are the European workers.

[180] We further agree with CSWU that, in any event, the issue about which it sought to

lead rebuttal evidence was not the general one of the comparative skills and experience of

the Latin American and European workers. Rather, the issue was the much more specific

one, raised squarely in Mr. Gencarelli’s direct evidence, and more obliquely by Mr.

Ginanneschi’s hearsay evidence, that the largest sub-set of the Complainant Group,

namely those from Costa Rica, had no experience operating or maintaining TBM-related

equipment. This assertion was never raised by the Respondents until Mr. Ginanneschi

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and Mr. Gencarelli gave their evidence, and it is not one which CSWU could possibly

have anticipated, for at least three reasons.

[181] First, as already indicated, the Respondents never put CSWU on notice that it

would lead this evidence. Second, the Respondents did not cross-examine the members

of the Complainant Group that CSWU called as part of its case in chief about these

issues. Third, the evidence in question directly contradicts the immigration documents

submitted by SELI to Citizenship and Immigration Canada in support of their work

permit applications, and which form part of the ASF. CSWU could not have anticipated

that the Respondents would seek, through Mr. Gencarelli and, to a lesser extent, Mr.

Ginanneschi, to contradict the assertions and declarations made by SELI in those

documents to the Canadian government about the Costa Rican employees’ experience.

[182] For these reasons, we concluded that it would be unfair to CSWU not to permit it

to lead the proposed rebuttal evidence. Further, we were not persuaded that it would be

unfair to the Respondents to allow the rebuttal evidence. First, the Respondents’

litigation strategy resulted in the circumstances that led to CSWU leading the evidence in

rebuttal rather than as part of its case in chief. And second, the Respondents, having led

the evidence from Mr. Gencarelli and Mr. Ginanneschi which CSWU sought to counter,

were fully able to cross-examine the rebuttal witnesses about the work performed by

them and the other Costa Rican workers on the La Joya project. Finally, the rebuttal

evidence was heard before the Respondents closed their case, giving them the opportunity

to address issues related to it through their remaining witnesses, in particular Mr.

Favaretto and Mr. Pellegrini.

Findings of fact related to the rebuttal evidence

[183] This is an appropriate place to make our findings of fact, both about the work

performed by the Costa Rican members of the Complainant Group on the La Joya

project, and about other matters related to the evidence about that issue.

[184] The evidence about what the Costa Rican workers did on the La Joya project is

inconsistent, to say the least. The immigration documents submitted by SELI to

Citizenship and Immigration Canada indicate that the Costa Rican workers had

65

substantial specialized tunnelling expertise, expertise that the Respondents required on

the Canada Line project because it could not be found among the Canadian workforce. In

their testimony, Mr. Favaretto, the Administrator and Financial Manager on the Costa

Rican project, and the author of those documents, and Mr. Ciamei, the Project Manager

for the Canada Line project, both testified that the information contained in the

immigration documents was true. By contrast, Mr. Gencarelli, the Production Manager

on the Costa Rican project, testified that some of the information contained in those

documents about the work experience of the Costa Rican employees was not true. Mr.

Ginanneschi testified that the information he received, both from the managers on the

Costa Rica project, and the Costa Rican employees themselves, was inconsistent with the

information contained in the immigration documents. The sources of Mr. Ginanneschi’s

understanding were unclear, however, as neither the managers nor the employees on the

Costa Rican project corroborated having given him the information he testified about.

Mr. Pellegrini, the Project Manager on the Costa Rican project, confirmed Mr.

Favaretto’s evidence that he provided him with the information upon which the

immigration documents were based. Finally, six of the Costa Rican employees testified

about what they and others did on the Costa Rican project.

[185] We have concluded that the best evidence of what the Costa Rican employees did

on the La Joya project, and of their experience in tunnelling, is contained in the

immigration documents and Mr. Ciamei’s affidavit. Mr. Favaretto testified that he

carefully prepared the immigration documents on the basis of detailed information

provided to him by Mr. Pellegrini. Mr. Pellegrini confirmed that evidence. The

immigration documents were prepared to be submitted to the Government of Canada for

the purpose of obtaining work permits for the Costa Rican employees. In the absence of

reliable evidence to the contrary, it should be presumed that the SELI officials

responsible for their preparation would, as testified by Mr. Favaretto, be careful and

truthful in their preparation. Further, those documents were prepared prior to the

commencement of these proceedings, and would therefore have been uninfluenced by

any potential effect on the outcome of this litigation. Finally, the information contained

in the immigration documents is, for the most part, consistent with the positions referred

to in the subsequent Letters of Assignment, signed by Mr. Ciamei, and, in some cases,

66

consistent with the positions to which Mr. Ginanneschi assigned the workers on the

Canada Line project.

[186] As outlined above, the immigration documents clearly state that the Costa Ricans

had specialized tunnelling expertise, including experience operating and maintaining

TBM-related equipment.

[187] Mr. Ciamei’s affidavit, the contents of which he confirmed were true when he

testified, while not going into detail about the particular work experience of each

individual Costa Rican employee, substantiates that they had specialized tunnelling

expertise, and that they were specifically brought to the Canada Line project for that

reason. While that affidavit was sworn for the purposes of this complaint, it is significant

that it was sworn prior to the amendment to the complaint adding the allegations about

discrimination in comparison to the European workers. It was therefore sworn at a time

when the Respondents would have had no reason to devalue the work experience of the

Costa Rican workers in comparison with the European workers.

[188] Further, with the exception of a handful of European managers and technical

specialists who were here from the outset, the initial complement of employees doing the

tunnelling work on the Canada Line project was made up entirely of Latin American

workers who had come from the Costa Rican project, including the Costa Rican workers,

who made up a majority of that group. The Respondents’ evidence was that their plan, at

that time, was to complete the project solely with the Latin American workers, working

on two shifts. And in fact, until in or about September 2006, when some European

workers were brought in to staff a third shift, it was the Latin American workers,

including the Costa Ricans, who performed the tunnelling work, including assembling,

operating and maintaining the TBM-related machinery. The Respondents’ evidence

about why the European workers were brought in was somewhat vague, and unsupported

by any documentation, but centred on production delays which their client was unhappy

with. But there is no suggestion that the Latin American workers, including the Costa

Ricans, were incapable of doing the specialized tunnelling work which they had been

brought here to do.

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[189] By contrast, we find the evidence of Mr. Gencarelli and Mr. Ginanneschi about

the work performed by the Costa Ricans on the La Joya project unreliable. There are a

number of reasons for this conclusion. First, as already stated, there is the inconsistency

between their evidence on this subject, and that contained in the immigration documents

and Mr. Ciamei’s affidavit. Second, there is the inconsistency between their evidence

about the work performed by the Costa Ricans in Costa Rica, and that of Mr. Pellegrini.

An example of the latter is Mr. Pellegrini’s evidence that Luis Alberto Retes Anderson

assisted the Cutterhead Mechanic in repairing the cutterhead on the La Joya project,

significantly more skilled work than Mr. Gencarelli had testified Mr. Retes Anderson

performed.

[190] Third, there is the inconsistency between their evidence and that of the six Costa

Ricans who testified about the subject. While the recollection of some of those witnesses

about the duration they or others operated particular pieces of machinery was tested on

cross-examination, the substance of their evidence about the kinds of work they and

others performed was not shaken. The substance of their evidence was that they and

others had operated or maintained TBM-related machinery in Costa Rica, and an outright

denial of Mr. Gencarelli’s evidence to the contrary.

[191] The aforementioned reasons apply equally to both Mr. Gencarelli’s and Mr.

Ginanneschi’s evidence. There are additional individual reasons for finding each of their

evidence unreliable.

[192] In Mr. Gencarelli’s case, his evidence was frequently vague or lacking in

specificity. He repeatedly testified, in an almost rote manner, that individual Costa

Ricans did manual labour only. Yet in cross-examination, it was revealed that he had

little or no recollection of the identity of individual Costa Rican workers. In fact it

became apparent that he had been given the passport photos of all of the Costa Ricans

and some Ecuadorians, and had studied them for some days before giving his evidence.

We do not accept that Mr. Gencarelli correctly recalled the work actually performed by

individual Costa Rican workers.

[193] In Mr. Ginanneschi’s case, his evidence about what the Costa Rican workers had

done in Costa Rica was entirely hearsay. He claimed to have learned about these matters

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in conversations with managers of the Costa Rican project, but that evidence was not

corroborated by the managers in question, in particular Mr. Pellegrini. He also claimed to

have questioned individual Costa Rican workers about their work experience at the start

of the Canada Line project, but that evidence was not substantiated by the workers who

testified.

[194] Further, and despite his evidence about the Costa Ricans’ lack of experience, Mr.

Ginanneschi assigned the Costa Ricans to work operating TBM-related machinery, and

until the Europeans arrived, sometime in or about September, the Latin Americans

performed the vast majority of the tunnelling work. The operation of the TBM requires

the coordinated efforts of a team of operators, helpers and labourers; it could not be

operated in the absence of persons able to perform all necessary tasks.

[195] The earliest Organization Chart, prepared by Mr. Ginanneschi sometime shortly

after the complaint was filed and the Europeans had started to be added to the project,

shows, for example, Ernesto de la Trinidad Cordero Camacho, Cristhian Leiton Calderon

and Luis Diego Brenes Perez working as Erector Operators. It shows Luis Alberto Retes

Anderson and Yandry Eugenio Tuarez Fortis working as TBM Mechanics. It shows Juan

Jose Luis Mora and Manuel Francisco Artavia Fonseca working as Loco Operators.

These examples could be multiplied. It would be remarkable indeed if these, and the

other Costa Rican employees, were able to operate and maintain all of the TBM-related

machinery on the Canada Line project, and to have done so from the outset of the project,

if they had no previous experience doing so in Costa Rica.

[196] Further, Mr. Ginanneschi’s evidence more generally appeared, at times, to be

tailored to attempt to assist the Respondents’ case rather than to tell the truth as he knew

it. There are many examples that could be referred to. Below, we provide several.

[197] Mr. Ginanneschi emphasized that SELI had used a double-shield TBM on the La

Joya project, while an EPB TBM was used on the Canada Line project. He testified that

the EPB TBM is more sophisticated, and more difficult to operate, requiring operators

experienced in its use. He further testified that none of the Latin Americans had operated

an EPB TBM, but that all of the Europeans had. This evidence was designed to devalue

the Latin Americans’ experience, and to say that they all required training before they

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could operate TBM-related machinery on the Canada Line project. The difficulty is that

Mr. Ginanneschi’s evidence was inconsistent with the basis upon which the Respondents

had intended to staff the Canada Line project, using Costa Rican workers whom they

knew, as stated in the immigration documents, had only worked with a double-shield

TBM. It is also somewhat inconsistent with the evidence of Mr. Ciamei, who testified

that the difference between the double-shield and EPB TBMs is only significant with

respect to some positions.

[198] In cross-examination, Mr. Ginanneschi was asked about whether Rogelio Cortes

Huertas had ever previously worked with an EPB TBM. Mr. Ginanneschi testified that

Mr. Cortes Huertas had not, and that Mr. Cortes Huertas had even told him this. This was

demonstrably untrue, as Mr. Cortes Huertas had worked with an EPB TBM on a SELI

project in Portugal.

[199] Mr. Ginanneschi repeatedly downplayed the skills and experience of the Latin

Americans while extolling those of the Europeans. For example, Mr. Ginanneschi

consistently underestimated the length of time the Latin Americans worked on the La

Joya project. Despite the fact that the La Joya project took over two years to complete,

Mr. Ginanneschi credited a number of the Latin Americans with only one to one and a

half years tunnelling experience. These included Ernesto de la Trinidad Cordero

Camacho, David Bonilla Granados, Jose Antonio Barboza Sanchez and Mario Alonso

Sanchez Chaves. A review of their immigration documents indicates that they had

between two and three years experience tunnelling in Costa Rica. When cross-examined

on this point Mr. Ginanneschi admitted that they might have had two years experience,

but attempted to recast the focus of his evidence as being that they had worked on only

one project.

[200] These examples are representative of the frailties in Mr. Ginanneschi’s evidence.

[201] For all of these reasons, we conclude that Mr. Gencarelli and Mr. Ginanneschi’s

evidence about what the Costa Rican workers did in Costa Rica is unreliable. Further, in

light of the seriousness of the difficulties with their evidence on this issue, we also find

their evidence about other matters, in particular Mr. Ginanneschi’s evidence about the

work performed by the workers on the Canada Line project, similarly unreliable.

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IX ANALYSIS

[202] In this part of the decision, we determine if CSWU has established a prima facie

case of discrimination against members of the Complainant Group. If it has, we will then

determine if the Respondents have established a bona fide occupational requirement

defence to the complaint. We will then determine if the members of the Complainant

Group who have applied to opt out of the complaint may do so. In relation to any parts of

the complaint which we find justified, we will determine the remedies to which those

members of the Complainant Group who have not opted out are entitled.

Prima facie case

1. What is necessary to establish a prima facie case in the circumstances of this

complaint?

[203] In their written submissions, the parties were in little if any real disagreement

about the elements CSWU must prove, on a balance of probabilities, in order to establish

a prima facie case of discrimination contrary to s. 13 of the Code.

[204] According to CSWU, it must show:

i.

That the members of the Complainant Group fall within one of the

protected groups against which discrimination is prohibited by the

Code;

ii.

That the Respondents have treated the members of the Complainant

Group adversely; and

iii. It is reasonable on the evidence to infer that the prohibited ground of

discrimination was a factor in the adverse treatment.

[205] In their written submission, the Respondents put what CSWU must establish this

way:

i.

That the members of the Complainant group were treated adversely

in that they were paid less than other SELI employees who perform

comparable work;

ii.

That the Complainant group shares characteristics of race, colour,

ancestry and/or place of origin; and

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iii. That there is a nexus or connection between the treatment and the

grounds.

[206] The first two elements are largely the same in the two formulations, requiring that

members of the Complainant Group share characteristics in respect of which

discrimination is prohibited, and adverse treatment.

[207] The parties do not materially differ in their formulations of the element requiring

that members of the Complainant Group share characteristics of race, colour, ancestry

and/or place of origin. It is clear that the Code only prohibits discrimination against

persons sharing characteristics related to prohibited grounds of discrimination. The

parties do differ with respect to whether members of the Complainant Group share all of

grounds relied upon by CSWU. We will return to this issue in our analysis of this

element.

[208] In relation to the adverse treatment element, the Respondents narrow the field of

adverse treatment to being paid less than other SELI employees who perform comparable

work, while CSWU refers more generally to adverse treatment. We will return to the

significance of this difference in formulation in considering the adverse treatment

element below, as it raises three questions: is a comparator group analysis required; if so,

who are the proper comparators; and in what ways are members of the Complainant

Group alleged to have been discriminated against? In that analysis, we will also consider

the Respondents’ submissions about the significance of s. 12 of the Code to the

interpretation of s. 13.

[209] The parties express the third element differently, but in our view it is a distinction

without a difference. Whether expressed as a reasonable inference that the prohibited

grounds were a factor in the adverse treatment or as showing a nexus or connection, the

substance of the burden on CSWU is the same: it must demonstrate, on a balance of

probabilities, that the prohibited grounds were a factor in the adverse treatment or that

there is a connection between the two.

[210] In this regard, it is helpful to refer to the British Columbia Court of Appeal’s

formulation of the test for a prima facie case of discrimination in Health Employers Assn.

of B.C. (Kootenay Boundary Regional Hospital) v. B.C. Nurses’ Union, 2006 BCCA 57,

72

and Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115, 2006

BCCA 58. Those were cases of discrimination on the basis of disability, and the Court,

relying on Martin v. 3501736 Inc. (c.o.b. Carter Chevrolet Oldsmobile), [2001]

B.C.H.R.T.D. No. 39 (Q.L.), 2001 BCHRT 37, para. 22, held that the complainant need

establish that he or she had (or was perceived to have) a disability, that he or she received

adverse treatment, and that his or her disability was a factor in the adverse treatment:

para. 38 of Health Employers Assn.

[211] It is apparent from these decisions that the Court of Appeal views the two

formulations of the third element of the prima facie put forward by the parties as

interchangeable. In Kemess, the arbitrator stated that the termination of the grievor must

be found to be prima facie discriminatory if he had a physical or mental disability, was

treated adversely by his employer, and “it is reasonable on the evidence to infer that the

disability was a factor (not necessarily the sole or overriding factor) in the adverse

treatment”: para. 30. The arbitrator found that all three elements had been established, as

the grievor’s possession and use of marijuana at work were partly the product of his

addiction, with the result that there was a nexus between his disability and the misconduct

for which he was terminated: paras. 31 – 32. The Court of Appeal held that the

arbitrator’s analysis on the issue of prima facie discrimination was correct: para. 34.

[212] The parties’ submissions raise the issue of whether this is a complaint of direct or

adverse effect discrimination, and the significance of that characterization for the

analysis. In its written and oral submissions, CSWU submitted that members of the

Complainant Group experienced adverse effect or systemic discrimination. In their oral

submissions, the Respondents argued that CSWU was, in fact, seeking to establish a case

of direct discrimination. In reply, CSWU disagreed, submitting that it was putting the

case forward as one of adverse effect discrimination.

[213] Since the decision of the Supreme Court of Canada in British Columbia

(P.S.E.R.C.) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (“Meiorin”), the distinction between

direct and adverse effect discrimination is no longer one which need be made: paras. 25

– 53. The terminology remains useful chiefly as a reminder that discrimination need not

be intentional or direct in order to be discrimination. The focus is on the effects of the

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respondent’s actions, not the reasons they engaged in them. This principle is given

statutory effect in s. 2 of the Code, which provides that “discrimination in contravention

of this Code does not require an intention to contravene this Code”.

[214] As stated by McIntyre J. in Ontario (Human Rights Commission) v. Simpsons

Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley”), the Supreme Court decision which first

recognized adverse effect discrimination:

The Code aims at the removal of discrimination. This is to state the

obvious. Its main approach, however, is not to punish the discriminator,

but rather to provide relief for the victims of discrimination. It is the result

or the effect of the action complained of which is significant. If it does, in

fact, cause discrimination; if its effect is to impose on one person or group

of persons obligations, penalties, or restrictive conditions not imposed on

other members of the community, it is discriminatory.

…

… On the other hand, there is the concept of adverse effect discrimination.

It arises where an employer for genuine business reasons adopts a rule or

standard which is on its face neutral, and which will apply equally to all

employees, but which has a discriminatory effect upon a prohibited ground

on one employee or group of employees in that it imposes, because of

some special characteristic of the employee or group, obligations,

penalties, or restrictive conditions not imposed on other members of the

work force. For essentially the same reasons that led to the conclusion that

an intent to discriminate was not required as an element of discrimination

contravening the Code I am of the opinion that this Court may consider

adverse effect discrimination as described in these reasons a contradiction

of the terms of the Code. An employment rule honestly made for sound

economic or business reasons, equally applicable to all to whom it is

intended to apply, may yet be discriminatory if it affects a person or group

of persons differently from others to whom it may apply…. (paras. 12 –

18) (emphasis added)

[215] McIntyre J. defined discrimination Andrews v. Law Society of British Columbia,

[1989] 1 S.C.R. 143, a Charter case frequently relied upon in human rights cases, in

similar terms:

I would say then that discrimination may be described as a distinction,

whether intentional or not but based on grounds relating to personal

characteristics of the individual or group, which has the effect of imposing

burdens, obligations, or disadvantages on such individual or group not

imposed upon others, or which withholds or limits access to opportunities,

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benefits, and advantages available to other members of society.

Distinctions based on personal characteristics attributed to an individual

solely on the basis of association with a group will rarely escape the

charge of discrimination, while those based on an individual’s merits and

capacities will rarely be so classed. (para. 37)

[216] Lastly with respect to the question of what is necessary to establish a prima facie

case, we refer to the more recent decision of the Supreme Court of Canada in McGill

University Health Centre (Montreal General Hospital) v. Syndicat des employés de

l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, where, in concurring

reasons, a minority of the Court again considered what discrimination is. After referring

to the preceding passage from Andrews, they stated:

At the heart of these definitions is the understanding that a workplace

practice, standard, or requirement cannot disadvantage an individual by

attributing stereotypical or arbitrary characteristics.

The goal of

preventing discriminatory barriers is inclusion. It is achieved by

preventing the exclusion of individuals from opportunities and amenities

that are based not on their actual abilities, but on attributed ones. The

essence of discrimination is in the arbitrariness of its negative impact, that

is, the arbitrariness of the barriers imposed, whether intentionally or

unwittingly.

What flows from this is that there is a difference between discrimination

and a distinction. Not every distinction is discriminatory. It is not enough

to impugn an employer’s conduct on the basis that what was done had a

negative impact on an individual in a protected group. Such membership

alone does not, without more, guarantee access to a human rights remedy.

It is the link between that group membership and the arbitrariness of the

disadvantaging criterion or conduct, either on its face or in its impact, that

triggers the possibility of a remedy. And it is the claimant who bears this

threshold burden.

If such a link is made, a prima facie case of discrimination has been

shown. It is at this stage that the Meiorin test is engaged and the onus

shifts to the employer to justify the prima facie discriminatory conduct. If

the conduct is justified, there is no discrimination (paras. 48 – 50)

(emphasis added)

[217] These comments by the concurring minority in McGill must be understood within

the context in which they were made. McGill involved an automatic termination clause

in a collective agreement, under which employees who were absent for three years had

75

their employment terminated. A disabled employee’s employment was terminated under

the clause, and she grieved.

[218] A majority of the Court dealt with the case on the basis that the employee’s

termination was prima facie discriminatory, but that the employer had met its duty to

accommodate, with the result that the termination did not violate the Quebec Charter of

Human Rights and Freedoms. In dealing with the case on this footing, the majority did

not provide any analysis of the why the application of the automatic termination clause to

the terminated employee was prima facie discriminatory.

[219] The minority chose instead to address the case on the basis that the employee had

not established a prima facie case of discrimination. After the passage just quoted, the

minority expressed its view that automatic termination clauses are not automatically

prima facie discriminatory. It viewed the three year period provided as generous. It

placed considerable emphasis on the fact that the clause represented a negotiated trade-

off that provided significantly greater protection to disabled employees than otherwise

provided for at law: para. 57. Both its purpose and its effect were to provide protection

from job loss due to disability: para. 61. As the minority put it, the clause did:

not target individuals arbitrarily and unfairly because they are disabled; it

balances an employer’s legitimate expectation that employees will perform

the work they are paid to do with the legitimate expectations of employees

with disabilities that those disabilities will not cause arbitrary

disadvantage. (para. 63)

[220] In other words, the minority saw the automatic termination clause in issue in

McGill as an ameliorating provision which improved rather than worsened the position of

disabled employees.

[221] Thus, the minority’s reasons in McGill reaffirm what has been clear since as long

ago as Andrews: not all distinctions are discriminatory. The purpose and effect of

distinctions must be considered to determine if they are discriminatory. The distinction at

issue was not, according to the minority, discriminatory, because it did not target disabled

employees arbitrarily and unfairly; rather, it ensured that they were treated more

advantageously than the law would otherwise require, providing both certainty and

balance between the legitimate expectations of employer and employee alike. The

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automatic termination clause, understood within this context, did not have an adverse

effect on the employees to whom it applied, and was therefore not discriminatory.

[222] Considered in light of these judicial statements about the nature of discrimination,

it is apparent that the focus of the analysis, regardless of whether the discrimination

alleged might be characterized as direct, adverse effect, or systemic, is on the effects of

the respondent’s actions on the complainant. As Health Employers Assn. and Kemess

make clear, it is sufficient if the respondent’s actions have a negative or adverse effect on

the complainant because of the fact that he has characteristics related to a prohibited

ground of discrimination.

As the minority in McGill explained, the essence of

discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the

barriers imposed, whether intentionally or unwittingly. Clearly, this does not mean that

the respondent must have intended to discriminate against the complainant because of the

grounds relied upon. It is apparent that the minority in McGill did not intend, through

its reasons, to negate the concept of adverse effect discrimination as developed in the

Court’s earlier decisions.

[223] The present complaint, as is often the case, has multiple aspects, some of which

might be termed direct, some adverse, and some systemic in nature. In light of Meiorin,

we need not parse out those various aspects and analyze them differently. Much of the

complaint focuses on salary differential, and this aspect of the complaint is essentially

one of adverse effect discrimination, as CSWU alleges, not that the Respondents

intentionally singled out members of the Complainant Group for adverse treatment in

terms of their salary because of their race, colour, ancestry or place of origin, but rather

that the Respondents’ practices had an adverse effect on them because of those grounds.

Other aspects of the complaint, dealing with accommodation, meals and expenses, have

characteristics of both direct and adverse effect discrimination. Given the multifaceted

nature of the complaint, and the way in which the Respondents’ practices are alleged to

have worked together to result in discrimination, the complaint has some characteristics

of systemic discrimination. Again, post-Meiorin, these distinctions no longer have much,

if any, analytical significance.

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[224] Lastly on the question of what must be proven to establish prima facie

discrimination, we note that neither party argued that we must apply the analytical

framework for determining a breach of s. 15 of the Charter set out in Law v. Canada

(Minister of Employment and Immigration), [1999] 1 S.C.R. 497. The potential

applicability of the Law framework to complaints of discrimination under the Code was

raised most squarely in Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601, in

which the Court said that Law analysis was inapplicable to that complaint, while leaving

open the possibility that it might apply in some other case, in particular, one with

“governmental overtones”: para. 39.

[225] It is noteworthy that in no subsequent decision, including Health Employers Assn.

and Kemess, has the Court of Appeal suggested that Law should be applied in analyzing

human rights complaints. For its part, the Supreme Court of Canada has, in R. v. Kapp,

2008 SCC 41, indicated that, even in Charter cases, Law does not “impose a new and

distinctive test for discrimination, but rather affirms the approach to substantive equality

under s. 15 identified in Andrews and developed in numerous subsequent decisions”:

para. 24.

[226] As explained by the Supreme Court in Kapp, the Law analysis is “a way of

focussing on the central concern of s. 15 identified in Andrews – combating

discrimination, defined in terms of perpetuating disadvantage and stereotyping”: para.

24. Both Charter and human rights jurisprudence, then, is focussed on combating

discrimination, and on substantive, rather than formal, equality.

[227] In light of these jurisprudential developments, we agree with the parties that we

need not apply the analytical framework set out in Law in order to determine if prima

facie discrimination has been established. Rather, we will employ the fundamental

principles established and developed in cases such as O’Malley, Andrews, McGill,

Kemess and Health Employers Assn.

[228] It is with these principles in mind that we turn to the consideration of whether

CSWU has established a prima facie case of discrimination.

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2. Has CSWU established a prima facie case?

The first element – what grounds are engaged by the complaint?

[229] CSWU alleges discrimination on the grounds of race, colour, ancestry and place

of origin. The Respondents submit that only the ground of place of origin is engaged by

the complaint.

[230] In the original complaint, the members of the Complainant Group were described

by CSWU as “individuals who are dark-skinned, Spanish speaking, foreign nationals

from some of the poorest regions in the world”.

[231] It is clear that both the members of the Complainant Group themselves and the

Respondents conceived of the members of the Complainant Group as distinct from both

the Canadian residents and the Europeans. Anthony Raul Gamboa Elizondo testified that

the Latin Americans tended to socialize with one another, and seldom socialized with the

European or Canadian resident workers. It is likely that this was due, in whole or in part,

to their conception of themselves as a distinct group.

[232] As we will discuss in more detail below in considering CSWU’s allegations of

adverse treatment, the Respondents treated the Complainant Group as a distinct group. It

is reasonable to infer from that distinct treatment that the Respondents perceived the

members of the Complainant Group as a distinct group, different from their other

employees who did not share the constellation of characteristics shared by the Latin

American workers. The following facts are examples of the many ways in which the

Respondents treated the members of the Complainant Group as a distinct group:

• Members of the Complainant Group were paid differently than others – in

American dollars, bimonthly;

• Members of the Complainant Group were treated as a group when it came to

the issue of meal tickets. The Respondents’ evidence was clear that they

treated European’s requests for changes in the provision of meal tickets and

money for meals on an individual basis, while members of the Complainant

Group were treated as a group. When four or five members of the

Complainant Group requested to receive money rather than meal tickets, they

were told, and the Respondents testified before us, that a change would only

be made if all members of the Complainant Group requested it; requests for

changes would not be dealt with individually;

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• Essentially all members of the Complainant Group were housed together at

the 2400 Motel, while most Europeans were housed in apartments close to the

worksite; and

• The Respondents’ evidence was that they consider and treat all Europeans as

managers, regardless of whether they exercise managerial functions.

[233] In support of its position that the members of the Complainant Group share

characteristics encompassed within the four alleged grounds of discrimination, CSWU

relies on Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 29 C.H.R.R. D/35

(Ont. Bd. Inq.), upheld on judicial review, [1998] O.J. No. 4019 (Div. Ct.), in which an

Ontario Board of Inquiry considered a complaint of discrimination on the grounds of

race, colour, ancestry, ethnic origin and place of origin. The named complainant was

from Ecuador. The Board also heard evidence of allegedly discriminatory conduct

against other workers from Ecuador and Guatemala. The alleged grounds of

discrimination are the same grounds alleged by CSWU, with the exception of “ethnic

origin”, which, while included in the Ontario statute, is not included in the Code.

[234] The Ontario Board stated that, as such, “the complaint alleges discrimination on a

number of grounds which are often combined as a kind of wide net to get at certain

complex discriminatory conduct”: para. 210. After a discussion of the meaning of the

operative terms, the Board stated:

I agree that Mr. Espinoza and those others from Ecuador and other Central

and South American countries were identifiable in terms of ethnic origin

based on a common language and a common historical colonial past in a

specific geographical area. Their ethnicity can be culturally and

linguistically defined as “Latin American”, with the prominent identifying

factor being the Spanish language. (para. 219)

[235] In support of their position that only place of origin is engaged by this complaint,

the Respondents submit that race, colour and ancestry are ill-defined terms in human

rights law, relying on an extract from Tarnopolsky & Pentney, Discrimination and the

Law, Vol. II. They submit that the mischief at which these grounds are aimed is

assumptions or stereotypes based on a person’s actual or assumed heredity. They also

submit that there is a diversity of skin colours and ancestries within the Complainant

Group, and that language is not engaged within these grounds: Grewal v. Fletcher

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Challenge Canada Ltd. (1992), 73 B.C.L.R. (2d) 335 at p. 349 (S.C.). Further, they

submit that the characteristics of being dark-skinned and Spanish-speaking do not

distinguish the members of the Complainant Group from other employees of the

Respondents, who speak a variety of languages, and have a variety of skin colours. In

this regard, the Respondents point to two Filipino residents, and the Canadian residents,

who have a variety of places of origin, whom they say were compensated comparably to

the members of the Complainant Group.

[236] We agree with CSWU that the members of the Complainant Group form an

identifiable group, which shares characteristics related to the four alleged grounds of

discrimination.

[237] The grounds of race, colour, ancestry and place of origin may be combined to

define, in a comprehensive way, ethnic identity as a basis of discrimination. As stated by

the Board in Espinoza, these four grounds “are often combined as a kind of wide net to

get at certain complex discriminatory conduct”. A similar point is made by Tarnopolsky

and Pentney, when they state that attempts to define “race” or “colour” are somewhat

irrelevant in human rights law, “as the real concern is not with the ‘race’ or ‘colour’ or

other hereditary origin of the individual who has been discriminated against, but rather

with what the respondent perceives the complainant to be”: p. 5-19, and later, that while

concepts such as “ancestry” and “place of origin” may be illusive of definition, “the

drafters of Canadian human rights legislation have attempted to ‘get at’ many, if not all,

of these types of pejorative reference by prohibiting discrimination based on them”: p. 5-

25.

[238] In other words, these grounds intersect in a complex way to describe a set of

characteristics which may result in discrimination. The concept of “intersectionality” has

been discussed in a number of human rights decisions, including Radek v. Henderson

Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302. The

concept recognizes the reality that a person may be subject to compound discrimination,

as a result of the combined disadvantaging effect of a number of prohibited grounds:

paras. 463 – 465.

81

[239] In Bitonti v. British Columbia (Ministry of Health) (No. 3) (1999), 36 C.H.R.R.

D/263, the British Columbia Council of Human Rights held that “place of origin”

encompasses the fact of being born in a particular group of countries: para. 148. The

Council held that a protected group need not be homogenous, and that what a group must

exhibit is a shared characteristic identified as a ground of discrimination: para. 152.

[240] We find that members of the Complainant Group are from a defined geographic

area – Central and South America, specifically, Costa Rica, Columbia and Ecuador,

thereby bringing the complaint, as in Bitonti, within the ground of place of origin. They

share a common language – Spanish. While they are not monochromatic, most members

of the Complainant Group who testified before us can reasonably be described as

relatively dark-skinned. It is reasonable to assume they share some degree of common

ancestry. The sum of these characteristics, and related cultural characteristics, such as

their food preferences, about which several of them testified, identified the members of

the Complainant Group as a distinct group of “Latin American” workers, exhibiting

shared characteristics related to the grounds of race, colour, ancestry and place of origin.

[241] The Court’s decision in Grewal does not eliminate the significance of a common

language in this constellation of shared characteristics. Grewal was a judicial review of a

decision of the British Columbia Council of Human Rights, in which it held that the

complainant was discriminated against on the basis of race, colour, ancestry and place of

origin when the respondent refused to hire him because he could not communicate

adequately in English. The Court disagreed with the Council, holding that a rule

requiring proficiency in the English language is not necessarily one which generalizes

about a person’s ability to do a job based on their membership in a group: para. 43.

[242] The Court stated, however, that:

There is no question that language is a conveyor of culture. It shapes and

is shaped by culture. A culture cannot survive without the ability of its

people to give expression to themselves and the way in which they see the

world through the articulation of thought in language …

One could hardly disagree with the member designate that language is

directly related to race, colour, ancestry and/or place of origin. But it

cannot be said that it is necessarily related. Apart from its capacity to

convey culture, language is also a communication skill that may be

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learned, and the ability to learn any language is not dependent on race,

colour or ancestry.

…

Language then has a dual aspect. It is inextricably bound with culture in

one sense, but in another it is means of communication unrelated to

culture…

This is not to say, however, that discrimination on the basis of language

may not in some cases, when scrutinized, be found to actually be based on

race, colour, ancestry or place of origin…. (paras. 37 – 44) (emphasis

added)

[243] Grewal does not stand for the proposition that language is not encompassed

within the four grounds in issue. Rather, it recognizes both the cultural significance of

language, and that discrimination on the basis of language may be encompassed within

discrimination on the grounds of race, colour, ancestry or place of origin. The Board in

Espinoza also recognized that language can be addressed as “one of the many identifying

features of ‘ethnicity’”: para. 220. Here, as in Espinoza, the point is not that members of

the Complainant Group were discriminated against because of their shared language,

Spanish, but rather that their shared language is one of the factors which helps to define

them as a distinct group, and that that shared language is related to their race, ancestry

and place of origin.

[244] Contrary to the Respondents’ submissions, the fact that they hired two people

from the Philippines, Mendoza Magusic Pandinio and Alex Villajuan, both of whom

came to work on the Canada Line project in late August 2007, has no bearing on this or

any other matter in issue in this complaint. The complaint was filed on behalf of the

Latin American employees in August 2006, a year before the Filipinos arrived. The fact

that the Respondents, who had control over whom they hired and when, chose to hire

these two employees on the eve of the hearing has no bearing on whether the Latin

American workers were discriminated against in comparison to the European workers.

[245] Little evidence was led about them, but Mr. Antonini testified that the two

Filipino workers were paid slightly more than the majority of the Costa Ricans, at

$22,000 vs. $20,000 US net. He explained this on this basis that that was how much the

Respondents had to pay the Filipinos to get them to come to the project. The fact that

83

some persons outside the Complainant Group may have experienced terms and conditions

of employment similar to the Complainant Group does not alter the distinctive

identifiable nature of that group, or the fact that they may have been discriminated against

on the basis of their membership in that distinctive identifiable group. Whether the

Filipinos were also subject to discrimination is not a matter before us for decision.

[246] We turn to a consideration of the Respondents’ submissions based on the fact that

they employed Canadian residents with a variety of places of origin. As we have

discussed, in its decision dismissing CSWU’s objections to the final offer vote, the LRB

rejected CSWU’s submission that the proposed collective agreement was contrary to the

Human Rights Code. In doing so, the LRB held that the compensation packages provided

to the Canadian residents and Latin American employees were within the same range. In

reaching this conclusion, the LRB included not only the wages paid to members of the

two groups, but also additional benefits which only the Latin Americans, as non-

residents, required and were provided, such as meals, accommodation and airfare. In

CSWU No. 1, we granted the Respondents’ application and held that CSWU was

estopped from pursuing its allegation that the Respondents discriminated against Latin

American workers in comparison to Canadian workers.

[247] The effect of CSWU No. 1 is to prevent CSWU from relitigating the issue of

whether the Latin Americans were discriminated against in comparison to the Canadian

residents. As a result, the parties led little evidence about the Canadian residents, which

makes any arguments based on their circumstances of questionable persuasive value.

Regardless of the effect of CSWU No. 1, as in the case of the Filipino residents, the

compensation paid to the Canadian residents forms part of the larger context in which this

complaint arose, but does not assist us in determining whether the Latin American

workers were discriminated against in comparison to the Europeans, which is the

complaint before us for determination. Finally on this point, the fact that the Canadian

residents had a variety of places of origin says nothing about whether members of the

Complainant Group, who clearly share a common place of origin, and other identifiable

characteristics, were discriminated against on the basis of those shared identifiable

characteristics.

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[248] In summary, we conclude that members of the Complainant Group share a

constellation of identifiable characteristics related to the grounds of race, colour, ancestry

and place of origin. All four grounds intersect and are engaged by the complaint. If we

are wrong in this conclusion, the Respondents concede that place of origin is engaged in

this complaint, which alone would be sufficient to satisfy the first element of the

discrimination analysis.

The second element -- is there adverse treatment?

A. Is a comparator group analysis necessary?

[249] The first question which must be answered in relation to the second element is

whether a comparator group analysis is necessary. Both parties provided comparator

group analyses, and the Respondents clearly premised their submissions upon the

necessity of such an analysis, but in oral submissions CSWU questioned whether one was

necessary.

[250] A comparator group analysis is not necessary in all human rights cases: see

Kemess, para. 30. It is not necessary, for the purposes of this complaint, to consider the

various circumstances in which such an analysis is or is not necessary, as it is clear that

this is a case in which a comparator group analysis is appropriate in considering whether

the members of the Complainant Group have experienced adverse treatment.

Discrimination, in this case, is a comparative concept.

[251] In large part, this conclusion flows from the manner in which CSWU itself chose

to frame the complaint, as amended. In the original complaint, CSWU alleged that “the

terms and conditions of [the Complainant Group’s] employment with the Respondents

were significantly different and perceptibly substandard in comparison to those of their

non-Latin American colleagues who perform identical, similar or substantially similar, or

less skilled and responsible work” (emphasis added). The comparison upon which

CSWU relied at that time was with the Canadian residents, which, as we have already

explained, is no longer before us.

[252] The allegation of different and substandard terms and conditions of employment

as compared to other employees was maintained in the amended complaint. What was

85

added was a comparison to the European workers who had recently arrived to work on

the project, which, as we have already discussed, constitutes the complaint now before us.

[253] Throughout, CSWU has framed the complaint in comparative terms, comparing

the terms and conditions of employment of members of the Complainant Group to those

of their colleagues.

[254] We find this approach appropriate in the circumstances of this case, and will

engage in a comparator group analysis.

B. Who is the appropriate comparator group?

[255] The next question which must be answered is who is the appropriate comparator

group. As stated by Supreme Court of Canada in Auton v. British Columbia (Attorney

General), [2004] 3 S.C.R. 657:

… the comparator group should mirror the characteristics of the claimant

or claimant group relevant to the benefit of advantage sought, except for

the personal characteristic related to the enumerated or analogous ground

raised as the basis for the discrimination [Hodge, at para. 23]. The

comparator must align with both the benefit and the universe of people

potentially entitled to it and the alleged ground of discrimination [Hodge,

at paras. 25 and 31]. (para. 53)

[256] In Law, the Supreme Court of Canada indicated that the starting point in

identifying the appropriate comparator group is the perspective of the complainant:

When identifying the relevant comparator, the natural starting point is to

consider the claimant’s view. It is the claimant who generally chooses the

person, group, or groups with whom he or she wishes to be compared for

the purpose of the discrimination inquiry, thus setting the parameters of the

alleged differential treatment that he or she wishes to challenge. However,

the claimant’s characterization of the comparison may not always be

sufficient. It may be that the differential treatment is not between the

groups identified, but rather between other groups. Clearly a court cannot,

ex proprio motu, evaluate a ground of discrimination not pleaded by the

parties and in relation to which no evidence has been adduced; see Symes,

supra, at p. 762. However, within the scope of the ground or grounds

pleaded, I would not close the door on the power of a court to refine the

comparison presented by the claimant where warranted. (para. 58)

[257] CSWU submits that the appropriate comparator group:

86

is composed of other non-resident workers with tunneling experience and

expertise who were engaged in the construction of the Canada Line tunnel.

That would include all of the workers on each of the three shifts as set out

in the Organization Chart, … as well as the underground maintenance

workers (those in the box above shift A on the Organization Chart).

While it is composed almost exclusively of workers in the tunnel, it does

include those workers above ground who are directly supporting the

tunneling operations and require tunneling experience and expertise.

These would include the batch plant operator and the gantry crane

operator.

These workers, like the members of the Complainant Group, are non-

residents with experience and expertise in tunneling who have been

engaged in the construction of the tunnel. These features of the

comparator group are relevant to the benefits being sought. That is, the

fact that they are non-residents relates to the accommodation, meal and

expense benefits, as those benefits are given to compensate for living away

from home. The fact that they have experience and expertise in tunneling

and are engaged in the construction of the tunnel relates to the salary paid.

The claim is that these benefits are not paid equally to the members of the

Complainant Group in whole or in part because of their race, colour,

ancestry and place of origin.

[258] The Respondents submit that the appropriate comparator group is made up of

“other SELI employees who perform comparable work”. This definition, while less

specific than that put forward by CSWU, is not inconsistent with it.

[259] Where the Respondents differ materially from CSWU in relation to the

comparator group is in their submission, which we address below, that:

The evidence establishes that there are only 13 members of the

Complainant group [who] were performing work for which there is a

higher paid comparator… The Union cannot succeed in its claim with

respect to the other members of the Complainant Group.

It is not open to the Union to point to the compensation of these 13

individuals as evidence of adverse treatment of other members of the

Complainant group who have no European comparators. Nor is it open to

the Union to point to evidence of how other employers compensate

employees who perform comparable work.

[260] We find the comparator group described by CSWU as “other non-resident

workers with tunneling experience and expertise who were engaged in the construction of

the Canada Line tunnel” to be appropriate. We would further make explicit what is

87

implicit in CSWU’s description, namely that the comparator group is made up of

Europeans performing non-managerial tasks in the construction of the tunnel. The

comparator group so defined mirrors the characteristics of the Complainant Group which

are relevant to salaries and benefits sought, except for their race, colour, ancestry and

place of origin. The members of the comparator group, like the members of the

Complainant Group, are non-residents with expertise and experience in specialized

tunnelling work, who were employed by the Respondents in the construction of the

Canada Line project. As non-residents, they shared a common need for accommodation,

meals and expenses, a need not shared by the resident workers on the project. Their

common characteristics as persons with expertise and experience in specialized

tunnelling work, performing specialized tunnelling work on the project, relates to the

salary paid to them. Those common characteristics also distinguish them from the other

workers who performed non-specialized work for the Respondents on the Canada Line

project.

[261] These commonalities are all reflected in the ASF, in particular, the following

paragraphs:

7.

It is understood and agreed that the employees with which this

complaint is concerned (“Employees”) are non-managerial employees

of SELI or the Joint Venture who perform construction work on the

Project, whether above or below ground.

8.

SELI SPA employs individuals from many different countries and

frequently deploys its employees with expertise in tunnelling to

various projects around the world. SELI SPA offered a number of its

employees with tunnelling experience who were working on SELI

SPA projects at various locations around the world the opportunity to

work on the Project in Vancouver. Employees who wished to work on

the Project were hired by SELI.

9.

All of these non-resident Employees had previously been employed by

SELI SPA or its subsidiaries on other tunnelling projects for periods

ranging from 12 months to 20 years.

…

31.

The Parties agree that the following employees perform substantively

the same work as employees holding the same positions as indicated

88

on the “TBM Bored Tunnel Organization Chart” contained at tab 131

of the Documents:

Hector Manuel Sanchez Mahecha

Rogelio Cortes Huertas

Foreman

German Dario Caro Fonseca

Ernesto de la Trinidad Camacho Cordero

Anthony Raul Gamboa Elizondo

Cristhian Leiton Calderon

Henry Builes Tamayo

Pilot

Erector Operator

Segment Transport

Electrician

Walter Quiros Monge

Grouting Operator

Loco Operator

Rail & Cleaning

Gabriel Esquivel Garcia

Juan Jose Luis Mora

David Bonilla Granados

Jojans Sanchez Chaves

Jose Luis Barboza Cedeno

(As above, we have amended this paragraph of the ASF to reflect the

workers’ full names.)

[262] Not included within the appropriate comparator group are administrators, true

management employees, and resident employees. None of these people shares the

common characteristics of the Complainant Group and the comparator group.

[263] In considering the exclusion of management employees, we must address the

evidence led by the Respondents that they consider all Europeans to be managers. This

was a point made on several occasions by Mr. Wates in his evidence, and it is also the

89

basis for the Respondents’ position that the European employees are not entitled to

overtime pay.

[264] Mr. Wates’ evidence on this point was not credible. Mr. Wates testified that the

Respondents considered all of the Europeans to be management because they had

management and supervisory responsibilities. Mr. Wates maintained this was true even

of an employee like Tiago Andre De Sousa Ribeiro, who is listed on the Organization

Chart as doing Rail and Cleaning, a job universally recognized by all witnesses as the

easiest tunnelling work, and which Mr. Wates himself rated as 1 out of 10 on a scale of

difficulty. According to immigration documents submitted by SELI in support of Mr. De

Sousa Ribeiro obtaining a work permit, Mr. De Sousa Ribeiro is from Portugal, and has

worked for SELI since 2002.

[265] Conversely, Mr. Wates testified that Rogelio Cortes Huertas, who is listed on the

Organization Chart as a Shift Foreman, and as such was responsible for the direction of

the men and work on his shift, including Mr. De Sousa Ribeiro, was not management.

Immigration documents show that Mr. Cortes Huertas is from Columbia, has worked for

SELI since 1982, and has been a TBM Foreman for nearly 20 years.

[266] Mr. Wates’ evidence that all Europeans were managers flies in the face of all

reliable evidence, including that emanating from or agreed to by the Respondents. In

particular, in the ASF, the parties agreed “the employees with which this complaint is

concerned (“Employees”) are non-managerial employees of SELI or the Joint Venture

who perform construction work on the Project, whether above or below ground”.

Further, they agreed that the 13 listed Latin American employees performed substantively

the same work as the Europeans listed on the Organization Chart in the same positions.

This means, for example, that the parties agreed that Mr. De Sousa Ribeiro performed

substantially the same work as David Bonilla Granados, Jojans Sanchez Chaves, and Jose

Antonio Barboza, all listed as performing Rail and Cleaning, not management. It also

means that they agreed that Rogelio Cortes Huertas and Hector Manuel Sanchez

Mahecha performed the same work as Wilson De Carvalho – Shift Foreman.

[267] Mr. Wates’ evidence that the Respondents consider all Europeans managers is not

evidence upon which we can or do conclude that all Europeans in fact exercise

90

managerial responsibilities on the Canada Line project. It is true that all managers

employed by the Respondents on the Canada Line project are European or Canadian

residents, and those managers – including Mr. Ginanneschi, Mr. Ciamei, Gabriele

Dell’Ava, Leonardo Pia, Edoardo Lanfranchi, Giuseppe Imbesi, Miguel Jose Rosinha,

Ferruccio Rotella, Carlo Giri, Luca Segatto, Gianfranco Casa, Roberto Perruzza, and

Vasili Fafas – are excluded from the comparator group, as are the administrators, some of

whom, such as Mr. Angioni and Mr. Wates, are Canadian residents. No Latin Americans

were managers or administrators.

[268] Mr. Wates’ evidence on this point reflects the attitude, expressed by several of the

Respondents’ witnesses, that the European workers are generally superior to, more

valuable, and more deserving of preferential treatment, as compared to the Latin

American workers. For example, this attitude was reflected in Mr. Gencarelli’s and Mr.

Ginanneschi’s evidence about the work performed by the Latin American workers on the

Costa Rican project, and Mr. Ginanneschi’s evidence about the relative experience and

skills of the Latin American and European workers on the Canada Line project.

C. Who is the Complainant Group?

[269] We have already identified the 40 Latin American workers who originally made

up the Complainant Group in this matter: paras. 67 – 78. In those paragraphs, we also

identified the members of the Complainant Group who left the project prior to its

completion. Those persons remain members of the Complainant Group.

[270] For reasons we provide below, we have permitted four members of the

Complainant Group who applied to do so to “opt out”. Technically, therefore, those four

employees – Rogelio Cortes Huertas, Hector Manuel Sanchez Mahecha, German Dario

Fonseca Caro and Henry Builes Tamayo – no longer form part of the Complainant

Group. For reasons discussed below in the analysis of the opting out application, this

does not render evidence relating to these four people and their employment with the

Respondents irrelevant: paras. 523 – 525. They continue to share all of the relevant

characteristics of members of the Complainant Group. Further, given that three of them

91

are long term SELI employees, evidence about them is particularly important in assessing

SELI’s international compensation practices.

[271] There are two persons who have unique circumstances, and whose treatment by

the Respondents was anomalous. One of these is Wilson De Carvalho; the other is Luis

Alajandro Montanez Lara. We consider whether they are appropriately considered for

the purposes of the comparator group analysis, and if so, how.

[272] Mr. De Carvalho was born in Brazil. He speaks Portuguese. He has lived in

Portugal for the past 17 years. He has worked for SELI since 2001, at which time he had

approximately three years previous tunnelling experience. On the Canada Line project,

he was paid bi-monthly in Euros, received $300/month in expenses, and received cash

rather than meal tickets for dinner. Mr. De Carvalho’s 2007 T-4 shows a pre-tax income

of $93,527.60, he was not paid overtime, and he was moved from the 2400 Motel to an

apartment, on his request. In all of these ways, Mr. De Carvalho was effectively treated

by the Respondents as if he were a European.

[273] The Respondents, focusing on Mr. De Carvalho’s Brazilian place of origin, point

to him as evidence of a lack of discrimination on their part. CSWU does not dispute that

Mr. De Carvalho technically falls within the Complainant Group. It submits, however,

that the fact that one member of the Complainant Group was not discriminated against is

not evidence that the Respondents did not discriminate against the other members of the

Complainant Group. Both parties generally treat Mr. De Carvalho for statistical and

analytical purposes as a European, most notably in the ASF and in many documents

created by the Respondents for the purposes of this hearing. This is consistent with Mr.

Antonini’s evidence that SELI “met” Mr. De Carvalho in Portugal, and that he earns a

European salary and was here in Vancouver as a “European guy”.

[274] The fact that a respondent may not discriminate against all members of an

identifiable group does not mean that the respondent does not discriminate against some

members of that group. This point was conclusively established by the Supreme Court of

Canada in Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, para. 62, a sexual

harassment case; and Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, para. 44, a

pregnancy discrimination case.

In each case, the Court addressed arguments that

92

because not all women are sexually harassed or pregnant, discrimination against some

women through sexual harassment or on the basis of pregnancy was not discrimination on

the basis of sex. In Janzen, Chief Justice Dickson stated:

Discrimination does not require uniform treatment of all members of a

particular group … If a finding of discrimination required that every

individual in the affected group be treated identically, legislative

protection against discrimination would be of little or no value …. (para.

62)

[275] Both Janzen and Brooks were sex discrimination cases. The same point has also

been made in relation to discrimination on the grounds engaged in this case. In Espinoza,

the evidence showed that some Latin American workers were not treated as poorly as the

complainant and others in his group. The Board held that the exemption of some Latin

Americans from the adverse treatment Mr. Espinoza experienced did not alter the

conclusion that Mr. Espinoza was discriminated against: para. 227.

[276] The same reasoning applies in respect of Mr. De Carvalho.

[277] Further, in general, we agree with CSWU’s submissions with respect to Mr. De

Carvalho. While, given his birth in Brazil, he technically falls within the Complainant

Group named by CSWU as “Foreign workers on temporary work visas from Central and

South America”, he is not from one of the three named countries of Costa Rica, Columbia

and Ecuador. He does not share one of the Complainant Group’s identifying

characteristics: He is not Spanish-speaking, and has lived in Portugal for 17 years.

Further, he is treated by the Respondents as if he is not a member of the Complainant

Group; they treat him like “a European guy”. That treatment is more important than his

technical membership in the Complainant Group. Like the parties, including in their

ASF, we consider Mr. De Carvalho’s experience as part of the European comparator

group.

[278] Luis Alajandro Montanez Lara’s situation is in many ways the converse of Wilson

De Carvalho’s. Mr. Montanez Lara is originally from Columbia, and had recently

become a permanent resident of Canada when he joined the Canada Line project. The

parties treated Mr. Montanez Lara as a member of the Complainant Group in their

materials. Despite his Canadian residency, Mr. Montanez was treated by the

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Respondents in the same way as the other Latin Americans in the terms and conditions of

his employment. He is properly considered within the Complainant Group, despite his

Canadian residency.

D. Is the comparator group analysis limited to the thirteen persons named in the

ASF?

[279] We now turn to a consideration of the Respondents’ submission that CSWU is

limited to comparing only the 13 Latin American employees listed in paragraph 31 of the

ASF to the Europeans performing the jobs listed beside their names.

[280] To adopt the Respondents’ submission on this point would serve to unduly narrow

both the Complainant Group and the comparator group. It would also turn the very

nature of a comparator group analysis on its head. A comparator group analysis is just

that: a comparator group analysis. So long as the comparator group is appropriately

defined to mirror the relevant characteristics of the complainant group, and we are

satisfied that is the case with the comparator group defined by CSWU, with the

clarification we have made at paragraph 260, the analysis then proceeds to a comparison

of the treatment afforded the two groups. The experience of individuals within those

groups is obviously relevant to making the group comparison, but the comparison

remains one ultimately performed at a group rather than an individual level.

[281] The evidence was overwhelming that, in many cases, there was considerable

movement of workers between positions to address the demands of the project, both

temporarily and on a more permanent basis. This included, for example, evidence of both

Europeans and Latin Americans performing a wide variety of duties, including assisting

in maintenance of TBM-related machinery, during the periods the TBM was not in active

operation. Cristhian Leiton Calderon, Jojans Sanchez Chaves and Anthony Raul Gamboa

Elizondo, among others, testified that they changed positions over the course of the

project, and frequently helped out in other positions as required. They did so without any

change in their rates of pay.

[282] The more permanent changes are reflected in the Organization Charts entered into

evidence, which show a number of Latin American workers being moved from one

94

position to another over the course of the project. Examples include Cristhian Leiton

Calderon, who is shown as moving from Erector Operator to Segment Transport Beam

Operator to Rail and Cleaning; Mario Alberto Alvarado, who went from Segment

Transport Beam Operator to Erector Operator Helper and back to Segment Transport

Beam Operator; Douglas Barboza Cedeno, who moved from Erector Operator Helper to

Conveyor Operator; and Jojans Sanchez Chaves, who went from Rail and Cleaning to

Erector Operator Helper.

[283] Taken at its narrowest, this movement of workers between positions would mean

that, for at least parts of the project, more than the 13 listed members of the Complainant

Group occupied the same positions held by Europeans. This includes Mario Alberto

Alvarado, whom the earlier and later Organization Charts show as having worked as a

Segment Transport Beam Operator; Martin Alonso Serrano Gutierrez, whom the earlier

Organization Chart shows as having worked as a Grouting Pump Operator; Manuel

Francisco Artavia Fonseca, whom the earlier Organization Chart shows as having worked

as a Loco Operator; Douglas Barboza Cedeno, whom the later Organization Chart shows

as having worked as a Conveyor Operator; and Efrain Calderon Araia, whom Appendix E

and the earlier Organization Charts show as also working as a Conveyor Operator. These

are all positions which the Organization Charts show as having also been held by

European workers.

[284] More broadly, the evidence was clear that when workers moved from one position

to another, either temporarily or permanently, their rates of pay and other terms and

conditions of employment were not altered. In other words, the particular positions held

by individual workers were not determinative of the terms and conditions of their

employment, including their rates of pay. Further, the movement of workers between

positions, both temporarily and permanently, demonstrates the interchangeability of the

skills required to operate, and even help maintain, most TBM-related machinery.

[285] It would be inconsistent with this evidence about the nature of the workplace to

insist on employees fitting into tight pigeon-holes in order for their experience to be

relevant to the comparator group analysis, and for the possibility of a remedy, should

discrimination be found.

95

[286] We therefore reject the Respondents’ submission that the comparator group

analysis, and, by extension, any possible remedy for any discrimination found, are

confined to the 13 listed individuals and the Europeans occupying their positions. Rather,

the proper comparator group is made up of all non-resident European workers with

tunnelling experience and expertise, excluding managers, who were engaged in the

construction of the Canada Line project.

E. Relevance of s. 12 of the Code

[287] It is primarily in connection with the second element of the prima facie case

analysis that the Respondents submit that the Tribunal must consider the effect of s. 12 of

the Code. Section 12(1) prohibits discrimination in the wages paid to men and women

performing substantially similar work in the following terms:

An employer must not discriminate between employees by employing an

employee of one sex for work at a rate of pay that is less than the rate of

pay at which an employee of the other sex is employed by that employer

for similar or substantially similar work.

[288] While acknowledging that the complaint before us is made under s. 13 of the

Code, and not s. 12, the Respondents submit that:

… s. 13 cannot be interpreted without reference to s. 12 and it must be

construed in a way that gives meaning to the intention the legislature

expressed in enacting s. 12… If s. 13 permitted comparisons between

employees who perform dissimilar work of equal value, or it permitted a

finding of adverse treatment to be based on assumptions about what

compensation the employer would have paid if it had employed others

who did perform comparable work, s. 12 would be meaningless. The

legislature could not have intended such a result….

[289] In support of these submissions, the Respondents rely on three decisions of the

Supreme Court of Canada: UBC v. Berg, [1993] 2 S.C.R. 353, p. 371; Canada (Attorney

General) v. Mossop, [1993] 1 S.C.R. 554 (no page or paragraph reference given); and R.

v. Proulx, [2000] 1 S.C.R., para. 28. We have reviewed those decisions, and can find no

support for these submissions. What those cases do stand for, so far as is relevant to the

question under consideration, are the propositions that:

96

• Human rights legislation is of a special nature, not quite constitutional, and is

to be approached in a broad, liberal and purposive fashion: Berg, para. 26;

see also Mossop, pp. 46 – 47 of Lexum version, per L’Heureux-Dubé J.;

• This approach does not give a tribunal or court licence to ignore the words of

the statute. “It is the duty of boards and courts to give [such legislation] a

liberal and purposive construction, without reading the limiting words out of

the Act or otherwise circumventing the intention of the legislature”: Berg,

para. 27;

• Court and tribunals must apply the law. If there is ambiguity as to its

meaning or scope, they should the usual rules of interpretation to seek out the

purpose of the legislation: Mossop, p. 26 of Lexum version, per Lamer C.J.;

• In determining legislative intent, one must give the words used in a statute

their usual and ordinary sense having regard to their context and the purpose

of the statute: Mossop, p. 28 of Lexum version, per La Forest J.;

• Human rights legislation should be interpreted generously with a view to

effect its purpose: Mossop, p. 29 of Lexum version, per La Forest J.; and

• “It is a well accepted principle of statutory interpretation that no legislative

provision should be interpreted so as to render it mere surplusage”: Proulx,

para. 28.

[290] Sections 12 and 13 of the Code are very different provisions, designed to address

different kinds of discrimination, each with their own unique legislative history. Section

12 is limited to sex-based wage discrimination between persons performing the same or

substantially similar work. Section 13, by contrast is limited neither to sex-based or wage

discrimination between persons performing the same or substantially similar work. There

are occasions where the provisions overlap in their potential application, as in Reid v.

Vancouver (City) Police Board, [2000] BCHRT No. 28; rev’d 2003 BCSC 1348; rev’d

2005 BCCA 418. Section 13 is much broader in its application than s. 12.

[291] Section 12 obviously has no direct application to the present complaint, which

alleges discrimination on the grounds of race, colour, ancestry and place of origin in the

area of employment, relying on alleged differences in a number of terms and conditions

of employment, including, but not limited to, wages.

[292] The Respondents seem to suggest that CSWU is impermissibly attempting to

create a pay equity provision out of s. 13 when s. 12, the provision of the Code directed to

97

disparities in wage rates, does not go so far. To do so, the Respondents submit, would be

to render s. 12 superfluous, which cannot have been the Legislature’s intention.

[293] That argument might have some plausibility if CSWU were attempting, through

its description of the comparator group, to create a pay equity scheme out of s. 13, that is,

if it were claiming discrimination based on differences in pay for dissimilar but equally

valuable work. That, however, is not the effect of CSWU’s submissions about the

appropriate comparator group. The use of the comparator group described by CSWU

permits the Tribunal to analyze whether the members of the Complainant Group were

discriminated against in respect of the terms and conditions of their employment, contrary

to s. 13. It does not convert s. 13 into a pay equity provision.

F. Comparative terms and conditions of employment

[294] Neither the Complainant Group nor the comparator group was static through the

course of the project. As we described in detail earlier in the decision, at paras. 67 – 78,

so far as the documents before us show, there were originally 39 members of the

Complainant Group. One more, Luis Alajandro Montanez Lara, arrived later. By the

time the hearing began, eight members of the Complainant Group had left the project.

[295] So far as the comparator group is concerned, it changed over the course of the

project, as described in detail at paragraphs 84 – 88. So far as we have been able to

determine from the documents before us, there were approximately 22 members of the

comparator group, although not all of them were present at any given time, as European

workers came and went from the project over time.

Salaries

[296] There are difficulties in determining and comparing salaries, for a number of

reasons, including the fact that the employees were paid in different currencies, subject to

different exchange rates over time; were paid on different schedules; some employees

were paid overtime, and some were not; there were changes made by the Respondents to

how some employees were paid following a complaint to the Employment Standards

Branch; the amounts indicated on the Letters of Assignment may or may not reflect what

98

the employees were actually paid; and the Letters of Assignment generally refer to net

rather than gross amounts.

[297] In the tables that follow, we have primarily relied upon a document prepared by

the Respondents, which shows the pre-tax incomes of the Europeans and Latin

Americans working on the project in 2007, as recorded on their T-4s, to determine

salaries. Using this evidence reduces many of the difficulties described in the preceding

paragraph. The resulting difficulty is that it includes only those employees who worked

on the project in 2007, and provides a gross amount, which is of little assistance in the

case of employees who worked less than a whole year. We therefore include in the tables

only those employees who were identified by Mr. Wates in his evidence as working all of

2007.

[298] In terms of the positions held by each worker, we have relied upon the

Organization Chart prepared by Mr. Ginanneschi for the Respondents at some time

shortly before the hearing, in or about August 2007, a copy of which is included as

Appendix E, and which the parties relied upon in their ASF, supplemented by the earlier

and later Organization Charts Mr. Ginanneschi prepared, which provide the same

information as of sometime shortly after the complaint was filed, in or about September

2006, and December 2007, respectively.

[299] The following tables therefore set out the positions and salaries of those members

of the Complainant Group and of the comparator group who worked a full year in 2007.

COMPLAINANT GROUP

Surnames

Given Names

Position(s) on 2007

Organization Charts

2007 Annual

Gross Salary

ALVARADO Camacho Mario Alberto

Erector Operator

Helper/Segment

Transport Beam Operator

$47,561.03

$48,610.13

$45,653.93

BARBOZA Cedeno

Douglas

Erector Operator

Helper/Conveyor

Operator

Jose Luis

Gantry Crane Operator

99

BARBOZA Sanchez

BONILLA Granados

BUILES Tamayo

Jose Antonio

David

Rail and Cleaning

TBM Electrician

Erector Operator

$46,525.91

$45,120.14

$54,257.11

$46,515.96

Henry

CAMACHO Cordero

Ernesto de la

Trinidad

CARO Fonseca

German Dario

German

TBM Pilot

$50,491.82

$43,907.61

$58,452.08

$46,932.21

$49,047.02

$44,669.62

$47,830.20

$45,368.13

CORDERO Camacho

CORTES Huertas

DURAN Aguilar

ESQUIVEL Garcia

FLORES Brenes

Erector Operator Helper

Shift Foreman

Crane Operator

Loco Operator

Yard Labour

Rogelio

Elian

Gabriel

Mario

GAMBOA Elizondo

LEITON Calderon

Anthony Raul

Cristhian

Erector Operator

Segment Transport

Beam/Rail and Cleaning

LOPEZ Salguero

MONTANEZ Lara

MORA Gamboa

NOGUERA Lopez

PICÓN Alarcón

QUIROS Monge

RETES Anderson

Jose Anselmo

Luis Alajandro

Franklin

Diesel Mechanic

$58,623.78

$56,053.56

$48,865.93

$48,687.71

$49,214.93

TBM Mechanic

Gantry Crane Operator

TBM Mechanic

David Jesus

Carlos Elidio

Walter

Grouting Pump Operator $44,872.93

Luis Alberto

TBM Maintenance

Mechanic/ Diesel

Mechanic Helper

$45,779.66

100

RUIZ Mora

Juan Jose

Ignacio

Jojans

Loco Operator

Yard Labour

$44,982.16

$43,686.89

SANCHEZ Alvarado

SANCHEZ Chaves

Rail and Cleaning/Erector $44,876.16

Operator Helper

SANCHEZ Mahecha

SERRANO Gutierrez

TUAREZ Fortis

Hector Manuel

Martin Alonso

Yandry Eugenio

Marvin Enrique

Felipe

Shift Foreman

$60,910.38

$42,354.50

$47,107.18

$46,284.99

$40,049.01

Yard Labour

TBM Mechanic

Batching Plant Operator

Yard Labour

VASQUEZ Moya

ZUNIGA Perez

COMPARATOR GROUP

Surnames

Given

Names

Position

2007 Annual

Salary

BARBEDO DA SILVA

COLLAR BLANCO

Antonio

TBM Pilot

$90,397.01

$90,134.13

$95,660.82

$93,527.60

$89,994.18

$95,495.64

$81,071.11

$79,342.32

Jose Antonio Loco Operator

DA SILVA TAVARES

DE CARVALHO

Jose Paulo

Wilson

TBM Electrician

Shift Foreman

FERREIRA RIBEIRO

GARCIA GONZALES

LOPEZ COZAR SANTIAGO

ROMERO BERENGENA

Bruno Miguel Grouting Pump Operator

Salvador

Antonio

Jorge

CHD Mechanic

Grouting Pump Operator

Erector Operator

101

[300] We note that payroll documents for February 2007 indicate that Antonio Lopez

Cozar Santiago and Jorge Romero Berengena started work as of February 13, 2007, and

thus did not work in January 2007. We nonetheless included them in this table; the salary

listed is for a little less than 11 months.

[301] Although the parties calculated and compared the salaries paid to employees in

the Complainant and comparator groups somewhat differently, the evidence is clear and

undisputed that members of the comparator group were paid more than members of the

Complainant Group.

[302] In terms of base salary, the majority of the Costa Ricans were paid a net salary of

$20,000 or $20,500 US. The only exceptions are German Dario Caro Fonseca, who is

from Columbia but lives in Costa Rica, and Elian Duran Aguilar, who were each paid

more, at $21,500 US net. The Columbians and Ecuadorians were paid base net salaries

of $21,000 to $27,225 US net. Depending on the applicable exchange rate, these base net

salaries are the equivalent of between about $23,000 and $31,000 Canadian.

[303] Still speaking in terms of base salary, the vast majority of the members of the

comparator group were paid in net Euros, plus bonuses. The base pay ranged from

€33,600 to €39,000. Again depending on the applicable exchange rate, these base net

salaries are the equivalent of between about $56,000 and $62,000 Canadian.

[304] The Europeans were therefore paid on average roughly twice the base net salary

of the Latin Americans.

[305] The evidence is that members of the Complainant Group were paid for overtime

worked while members of the comparator group were not. In this connection we note

CSWU’s submission that members of the comparator group are legally entitled to

overtime pay under the Employment Standards Act. It is not this Tribunal’s function to

determine whether the Respondents’ practice of not paying the Europeans overtime pay is

contrary to that Act. For our purposes, what is most important is what the employees in

the different groups were actually paid for work performed; and the evidence is that,

regardless of what their Letters of Assignment say, the Latin Americans were paid for

overtime work, while the Europeans were not. This difference is taken into account in

the T-4s for 2007, which are the basis for the gross salaries, inclusive of paid overtime if

102

any, listed in the tables below. Proceeding in this manner leaves open the question of the

number of hours actually worked by members of the two groups to earn the gross salaries

indicated, but that is not a question which can be answered on the evidence before us.

[306] That is because it is not possible, on the evidence before us, to determine how

much overtime employees in the two groups worked. The incomplete payroll documents

entered into evidence do not show how many overtime hours were worked by or paid to

either the Latin American or the European workers. Mr. Wates testified that it would be

an onerous calculation to determine the actual overtime worked by each Latin American.

He created a document which purported to show the total compensation, including

overtime, paid to the Latin American workers. In it, he assumed that the Latin Americans

worked eight hours of overtime a week. The basis for this assumption was not

established in the evidence; no source documents for the document he created were

introduced. There were other difficulties with the document Mr. Wates produced. For

example, he included within the benefits received by the Latin Americans $1000 in

transportation, which he testified was based upon the cost to the Respondents, including

fuel, insurance and depreciation, of the van used to transport the Latin Americans back

and forth from the 2400 Motel to the worksite. He also included the Respondents’ legal

fees in obtaining work permits as a benefit to the Latin American employees. The

inclusion of these and other items as benefits to the Latin Americans is of doubtful

validity. We are unable to rely on this document for any purpose, including the

determination of the amount of overtime worked by or paid to the Latin American

workers.

[307] CSWU made the following calculations, which were not challenged by the

Respondents, and which we accept as reasonably accurate, which show the differences in

the gross salary, including any overtime, paid to the two groups:

Latin

American

European

Difference

Percentage

Difference

Average Income

$48,109.76

$89,452.85

$41,343.09

85.93%

103

Avg. Inc. excl.

$48,109.76

$92,534.90

$44,425.14

92.34%

Lopez & Romero

Mean Income

$46,729.06

$90,265.57

$91,962.31

$43,536.51

$45,233.25

93.18%

96.80%

Mean Inc. excl.

Lopez & Romero

[308] The following table, taken from CSWU’s written submission, shows the

differences in gross incomes earned by persons working in the same positions for the full

year in 2007:

T4 pre-tax

Income

T4 pre-tax

Income

Position

Foreman

Pilot

Latin American

European

Hector Manuel

Sanchez Mahecha

$60,910.38 Wilson De Carvalho

$93,527.60

$90,397.01

Rogelio Cortes

Huertas

$58,452.08 Wilson De Carvalho

German Dario Caro

Fonseca

Antonio Barbedo Da

$50,491.82 Silva

Ernesto de la

Trinidad Camacho

Cordero

Erector

Operator

Jorge Romero

$46,515.96 Berengena

$79,342.32

$95,660.82

$81,071.11

$89,994.18

Erector

Operator

Anthony Raul

Gamboa Elizondo

Jorge Romero

$47,830.20 Berengena

Henry Builes

Electrician Tamayo

Jose Paulo Da Silva

$54,257.11 Tavares

Grouting

Operator

Walter Quiroz

Monge

Antonio Lopez Cozar

$44,872.93 Santiago

Grouting

Operator

Walter Quiros

Monge

Bruno Miguel Ferreira

$44,872.93 Ribeiro

104

Loco

Operator

Gabriel Esquivel

Garcia

Jose Antonio Collar

$49,047.02 Blanco

$90,134.13

Loco

Operator

Juan Jose Ruiz

Mora

Jose Antonio Collar

$44,982.16 Blanco

[309] The foregoing shows that, in terms of gross salaries, these Latin Americans were

paid about 60% of the gross salaries paid to Europeans working in the same positions in

2007. We find that, on any calculation, members of the Complainant Group were paid

substantially less than members of the comparator group performing the same or

substantially similar specialized tunnelling work.

Accommodation

[310] In determining the other terms and conditions of the workers’ employment, we

have relied on a variety of sources, including paragraph 30 of the ASF, which shows

where the listed employees resided, and a number of other documents, prepared and

introduced by the Respondents, showing the accommodation, meals, and expenses

provided, and the parties’ oral evidence.

[311] When the Latin American workers arrived in Vancouver in or about April 2006,

they were all housed in the 2400 Motel on Kingsway. The Respondents provided a van

to transport the Latin American workers to and from the project. With four minor

exceptions, all members of the Complainant Group remained in the Motel for the

duration of their employment on the Canada Line project. The exceptions were Luis

Alajandro Montanez Lara, who moved to an apartment on Dundas Street sometime after

his family joined him in Vancouver, to which the Respondents contributed $700.00 per

month; two employees, whom it appears were evicted from the Motel and moved to an

apartment paid for by the Respondents on E. 61^stAvenue, at a total cost of $780.00 per

month; and Luis Alberto Retes Anderson, who moved out of the Motel in disputed

circumstances in the midst of the hearing.

[312] At the outset, all managers and administrators were housed by the Respondents in

apartments around False Creek, within walking distance of the project.

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[313] When the European workers began to arrive some, such as Jose Paulo Da Silva

Tavares, were immediately or very shortly thereafter housed in the False Creek

apartments. Others, such as Jose Antonio Collar Blanco, were temporarily housed at the

2400 Motel, and were then moved to the False Creek apartments. No Latin Americans

were ever moved to the False Creek apartments. Mr. Ciamei testified that it was his

decision who lived where. He said the Europeans, such as Mr. Collar Blanco, were

moved to the apartments because they were skilled and he wanted them closer to the site.

He had no explanation why he never moved any Latin Americans, including Rogelio

Cortes Huertas, from the Motel to the False Creek apartments.

[314] It is impossible, from the documents provided by the Respondents, to determine

precisely where each European lived for each month they lived in Vancouver working on

the Canada Line project. This is because the accommodation documents introduced were

incomplete, and sometimes contradictory. The following table provides the best

information we have with respect to where the members of the comparator group lived.

Name

Month arrived on project as

indicated in Letters of

Assignment

Where lived

Rental cost where known

Where payroll information

establishes arrival date, also

provided

Where known, date of

departure is given in brackets

Jose Paulo Da July 2006

Silva Tavares

Apartment throughout.

Single occupancy.

First payroll – August 2006

(According to accommodation

records, still on project as of

February 2008)

$1300 per month. This and all

apartment rental costs do not

include cleaning, hydro, furniture,

internet, TV and telephone. The

Respondents introduced

documents which estimated the

cost of cleaning, hydro and

furniture, which they paid for, at

$445.00 per month for this and

essentially all apartments. They

estimated the cost of TV, internet

and local telephone at $120 per

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month, which they said the

apartment residents paid for,

unlike those living at the 2400

Motel.

Mirco

Giannotti

July 2006

Apartment throughout.

Single occupancy.

$1285 per month.

First payroll – August 2006

(According to accommodation

records, still on project as of

February 2008)

Roberto

No Letter of Assignment –

Apartment throughout.

Single occupancy.

$1010 per month.

Carlos Verao Application for Work Permit

Pombal

filed in July 2006, so likely

arrived in or about September

2006.

Never appears on payroll

documents.

(According to accommodation

records, left sometime between

January and June 2007)

Juan Marcos

Balcells

Morell

September 2006

Likely after a stay of half a month

in the 2400 Motel, moved to

apartment for the remainder of

stay.

Never appears on payroll

documents.

(According to accommodation

records, left project sometime

Triple occupancy.

between January and June 2007) $1600 per month.

Antonio

Fernando

Barbedo Da

Silva

September 2006

2400 Motel until March 2007,

when moved to apartment for the

remainder of stay.

First payroll – September 19,

2006

Triple occupancy.

$1325 per month.

(According to accommodation

records, still on project in

February 2008)

Jose Antonio

Collar Blanco

September 2006

Likely after a stay of half a month

in the 2400 Motel, moved to

apartment for the remainder of

stay.

First payroll – September 19,

2006

(According to accommodation

records, still on project in

February 2008)

Triple occupancy.

$1600 per month; later increased

to $1665 per month.

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Salvador

Garcia

Gonzalez

September 2006

Likely after a stay of half a month

in the 2400 Motel, moved to

apartment for the remainder of

stay.

First payroll – September 19,

2006

(According to accommodation

records, left project sometime

between June and December

2007)

Triple occupancy.

$1600 per month.

Wilson De

Carvalho

October 2006

2400 Motel until March 2007,

when moved to apartment for

remainder of stay.

Never appears on payroll,

although there is 2007 T-4 for

him

Triple occupancy.

$1325 per month.

(Testified in March 2008 – still

on project at that time)

Bruno Miguel October 2006

Ferreira

Ribeiro

2400 Motel until March 2007,

when moved to an apartment for

remainder of stay.

First payroll – October 17, 2006

(According to accommodation

records, still on project February

2008)

Triple occupancy.

$1325 per month.

Antonio

Lopez Cozar

Santiago

February 2007

2400 Motel until June 2007, when

moved to an apartment for

remainder of stay.

First payroll – February 6, 2007

(According to accommodation

records, still on project February

2008)

Double occupancy.

$1400 per month.

Pedro Filipe

Nascimiento

Morais

February 2007

Likely 2400 Motel until June

2007, when moved to an

apartment for remainder of stay.

First payroll – February 13, 2007

(According to accommodation

records, left project sometime

between June and December

2007)

Double occupancy.

$1400 per month.

Vitorino

Manuel

Ribeiro

February 2007

Appears 2400 Motel throughout.

First payroll – February 13, 2007 Triple occupancy.

(Left August 2007) $1316.50 per month. This and all

figures for the 2400 Motel include

all costs, including cleaning,

telephone and kitchen or fridge

where applicable.

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Tiago Andre

De Sousa

Ribeiro

February 2007

Appears 2400 Motel throughout.

First payroll – February 13, 2007 Triple occupancy.

(Left August 2007)

$1316.50 per month

Jorge Romero February 2007

Berengena

Appears 2400 Motel until June

2007, when he moved into an

apartment for the remainder of

stay.

First payroll – February 6, 2007

(According to accommodation

records, still on project February

2008)

He appears to have replaced

Balcells Morell when he left the

apartment he shared with Collar

Blanco and Garcia Gonzalez.

$1600 per month; later increased

to $1665 per month.

Tommaso

Buffa

June 2007

2400 Motel throughout.

No payroll documents for June

2007 forward.

Initially double occupancy at

$1211.50 per month.

(According to accommodation

Later triple occupancy at $1845.00

records, still on project February per month.

2008)

Giuseppe

Scorzafava

June 2007

2400 Motel throughout.

Initially double occupancy at

(According to accommodation

records, still on project February $1211.50 per month.

2008)

Later double occupancy at

$1405.00 per month.

Giuseppe

Folino

June 2007

2400 Motel throughout.

(According to accommodation

Initially double occupancy at

records, still on project February $1211.50 per month.

2008)

Later triple occupancy at $1845.00

per month.

Giuseppe

Felice Lopez

June 2007

2400 Motel throughout.

Single occupancy.

(According to accommodation

records, still on project February

2008)

Initially $953.50 per month.

Later $1015.00 per month.

Guerino

Mellea

No Letter of Assignment – given 2400 Motel throughout.

that Application for Work Permit

Double occupancy at $1211.50 per

filed in May 2007, likely arrived

in or about June 2007

month.

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(According to accommodation

records, left project between

December 2007 and February

2008)

Pere Salellas

Payrot

September 2007

2400 Motel throughout.

Single occupancy.

(According to accommodation

records, still on project February

2008)

Initially $965.50 per month.

Later $1015.00 per month.

2400 Motel throughout.

No information on cost.

2400 Motel throughout.

Triple occupancy at $1845.00 per

Julio Vitor

Soares Pereira

September 2007

(Left November 2007)

October 2007

Alessandro

Zangari

(According to accommodation

records, still on project February month.

2008)

Publio Garcia No immigration documents or

2400 Motel until December 2007,

when he moved to an apartment

for the remainder of his stay.

Alvarez

Letter of Assignment, but

arrived in October 2007

(According to accommodation

Appears to have replaced Garcia

records, still on project February Gonzalez when he left the

2008)

apartment he shared with Collar

Blanco and Romero Berengena.

Triple occupancy.

$1665 per month.

[315] All Europeans who arrived to work on the project prior to June 2007 were housed

in the False Creek apartments, either immediately upon their arrival, or after a stay at the

2400 Motel. The only exceptions were Vitorino Manuel Ribeiro and Tiago Andre De

Sousa Ribeiro, who appear to have stayed at the 2400 Motel the whole time they were in

Vancouver, from February to August 2007. Mr. Ciamei explained that the Respondents

did not always have an apartment immediately available, which is why some Europeans

were temporarily housed at the Motel. Those Europeans who arrived in or after June

2007 were housed at the 2400 Motel for the duration of their stay in Vancouver. Mr.

Ciamei testified that this was because the Respondents could not find any more

apartments. The only exception appears to be Publio Garcia Alvarez, who moved to an

apartment after a short stay at the 2400 Motel in or about December 2007.

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[316] The apartments are within walking distance of the worksite, while those staying at

the 2400 Motel were transported back and forth to work by van. They also had to

commute to the two restaurants, located on West Broadway, at which they were required

to take their meals.

[317] Wilson De Carvalho, who stayed at both venues, testified about them. He initially

lived at the 2400 Motel, and was moved, at his request, to one of the apartments, which

he preferred. Anthony Raul Gamboa Elizondo, although he had been no closer than the

doorstep, testified that he had heard from co-workers that the apartments were “fucking

beautiful”. As Rogelio Cortes Huertas testified, Latin American workers staying at the

2400 Motel were not given a choice about where to stay.

[318] The Respondents’ main response on the accommodation issue was to lead

evidence about the comparative costs, to them, of housing workers at the two venues.

There were a number of problems with this evidence, including its late production, and

substantial questions as to whether all real costs accruing to the Respondents were

accurately accounted for. This may be in part due to what Mr. Wates testified was the

Respondents’ poor record-keeping system.

[319] In reply to the Respondents’ evidence on this issue, CSWU did its own

calculations of the comparative cost to the Respondents of housing workers at the Motel

as opposed to the apartments.

[320] The parties differed on the average costs per occupant of the two kinds of lodging.

[321] Despite the difficulties with the evidence on the accommodation issue, we find,

on all of the evidence before us, that it was probably more expensive, on average, for the

Respondents to house people in the apartments than at the 2400 Motel. It is clear, for

example, that on March 10, 2006, Mr. Ciamei and another SELI manager, Antonio

Dambra, and the manager of the 2400 Motel signed an agreement which indicated that

“room charges are C$500.00 per month per person based on double occupancy or

greater”. The Motel appears to have raised its rates, in some cases very significantly,

over the course of the time workers were housed there. Even with those rate increases,

however, when the rental rates for the apartments are considered, and the additional costs

incurred by the Respondents are factored in, such as furnishing the apartments, and

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paying for cleaning and hydro, the average per person cost to the Respondents of housing

people in the apartments would still likely be greater.

[322] In this regard, it is also relevant to note that, when Luis Alajandro Montanez Lara

moved out of the 2400 Motel to live with his family, the Respondents paid him $700.00

per month cash as a contribution towards his housing, substantially less then they were

prepared to pay for the apartments in which Europeans such as Mirco Giannotti and Jose

Paul Da Silva Tavares, also both single occupancy, lived. Similarly, when the two other

Latin American workers left the 2400 Motel, the apartment in which the Respondents

chose to house them, which was nowhere near the worksite, cost $780.00 per month,

substantially less than the apartments in which Europeans such as Antonio Lopez Cozar

Santiago and Pedro Filipe Nascimiento Morais, also double occupancy, lived.

[323] On the evidence before us, we conclude that the Respondents incurred greater

costs, on a per capita basis, to house workers in the False Creek apartments than at the

2400 Motel, and more generally, that the Respondents incurred greater costs, on average,

in housing Latin Americans than Europeans in Vancouver while they worked on the

Canada Line project.

[324] The heart of the accommodation issue, however, is not what it cost the

Respondents to house workers in the two venues, but what the value or benefit to the

workers was, either of staying in one of the two venues, or in having a choice about

where to stay. This is to be assessed from the perspective of a reasonable complainant.

[325] On the evidence before us, we conclude that a reasonable complainant, if given

the choice, would prefer to stay at one of the False Creek apartments than at the 2400

Motel. Wilson De Carvalho testified that this was his preference. Further, a reasonable

complainant would certainly prefer to be given a choice about where to live, as Mr. De

Carvalho, but not members of the Complainant Group, were. We find that members of

the Complainant Group were treated adversely in comparison with members of the

comparator group in terms of where they were housed while working on the project.

Meals and meal tickets

[326] All Latin American workers received 60 meal tickets per month for lunch and

dinner and $150 for breakfast. Most European workers received 30 meal tickets per

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month for lunch, and $150 for breakfast and $300 for dinner. Some Europeans had

different arrangements. In particular, four Europeans, who joined the project later, in

June 2007, received 60 meal tickets and $150 for breakfast. Jose Paulo Da Silva Tavares

had yet a different arrangement, receiving a larger sum of money and no tickets.

[327] Early on in the project, the Respondents had also provided the Latin Americans

with meal tickets for breakfast. When a majority of them at a meeting with Mr. Antonini

said that they would prefer to receive money for breakfast, the Respondents agreed to

make that change.

[328] The evidence showed that at least some members of the Complainant Group did

not like eating at the two restaurants at which the tickets could be used for lunch and

dinner. Anthony Raul Gamboa Elizondo and Jojans Sanchez Chaves both testified that

they asked members of management if they could be given money rather than the meal

tickets. Mr. Sanchez Chaves explained that this was because the food provided by the

restaurants was not the kind of food they liked. Luis Alajandro Montanez Lara, the

Canadian resident from Columbia, testified that, after he moved out of the 2400 Motel

when his wife came to join him in Vancouver, the Respondents continued to give him 60

tickets per month, and not money, even though he did not want and did not use the

tickets. Eileen Fu, the owner of one of the restaurants, testified that she had received

some complaints from the Latin American workers about the kind of food offered by the

restaurant, although she believed that she had satisfied their concerns through learning

new recipes. For his part, Rogelio Cortes Huertas testified that he liked the tickets

because he did not have to look around for a restaurant to eat in.

[329] Mr. Angioni, the person designated as the Latin Americans’ primary management

contact, and Mr. Ciamei both confirmed that some Latin American workers – they

estimated between three and five of them – asked for money rather than meal tickets, but

that in order for the Respondents to comply with these requests, all of the Latin

Americans would have needed to come forward and make this request. Mr. Angioni

testified that Mr. Montanez Lara asked to be given money instead of tickets, but that

request was denied because the company cannot change its organization for what every

worker wants. Mr. Angioni and Mr. Ciamei testified that this was because of the

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Respondents’ agreements with the two restaurants to purchase a minimum of 60 meals a

day.

[330] Mr. Angioni and Mr. Ciamei’s evidence showed that the Respondents were

prepared to make individual arrangements with individual European workers about

meals. Mr. Ciamei testified that the Respondents dealt with the Europeans one by one,

giving them what they preferred.

[331] The evidence clearly demonstrated that the Latin American workers were treated

differently than the European workers in relation to meal arrangements. The Latin

Americans were given tickets rather than money, and the Respondents refused to consider

individual requests from Latin Americans for different arrangements. We find that, from

the perspective of a reasonable complainant, it would more likely than not be preferable

to be given a sum of money to do with as you wish than to be given tickets redeemable at

only two restaurants. The freedom to choose where and what you eat would be seen by

most people as preferable to having to eat at the same two restaurants every day for

nearly two years.

Expenses

[332] The Respondents treated members of the Complainant Group and the comparator

group differently in regard to expenses other than meal expenses. With the exception of

Jose Paulo Da Silva Tavares, who received $800 per month for all expenses, including

meals, all Europeans received $300 per month for miscellaneous expenses, exclusive of

meals, which we have already addressed.

[333] By contrast, none of the Latin Americans received a monthly allowance for

expenses. Rather, they were permitted to claim certain expenses, such as laundry and

some phone charges, and receive reimbursement. Mr. Angioni’s evidence established

that, on average, Latin Americans received just over $76 per month in reimbursed

expenses, most of which was for laundry.

[334] We find that the Latin Americans experienced clearly different, and adverse,

treatment, in comparison to the Europeans. They received, on average, about one quarter

of the financial value of the European workers. Further, they had to make expense claims

for specific items, rather than receiving a monthly allowance to do with as they pleased.

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Clearly a reasonable complainant would prefer the arrangement enjoyed by the European

workers.

The third element – were the grounds of discrimination factors in the adverse

treatment?

A. What evidence and submissions are relevant to the third element of the prima facie

case?

[335] The parties disagree about whether some or all of the evidence and submissions

put forward by the Respondents in support of their position that the Latin Americans

were not discriminated against should be considered at this stage of the analysis, or later,

in the context of whether the Respondents have established a bona fide occupational

requirement or “BFOR”.

[336] The Respondents placed all of their submissions, other than those we have already

addressed, in the context of the third element of the prima facie analysis, that is, they

argued that CSWU had failed to establish a nexus between any adverse treatment

experienced by the Latin Americans and the grounds of discrimination relied upon. Their

primary argument was that any differences in salaries paid were primarily a function of

SELI’s international compensation practices and global labour markets, and were

therefore not discriminatory. In this connection, they argued, relying on Bitonti, that

CSWU could not establish a connection between the compensation paid to members of

the Complainant Group and their place of origin. They also argued, relying on Agduma-

Silongan v. UBC, 2003 BCHRT 22, that any distinctions were based, not on negative

stereotypes or assumptions about employees’ places of origin, but on objective facts

about the countries in question.

[337] The Respondents also made some of their submissions about the significance of s.

12 of the Code in this context.

[338] The Respondents also submitted that any differences in treatment were, to a lesser

extent, a function of other factors, in particular: exchange rates between different

currencies over the course of the project; and the Europeans’ superior experience and

skills. The latter factor played a much more prominent role in the Respondents’ evidence

115

than in their final argument, although they did continue to submit that most of the

Europeans had greater skills and experience, and that that was part of the reason they

were paid more.

[339] Finally, the Respondents submitted that CSWU was impermissibly attempting to

overturn the collective agreement in place between the parties, when its attempts to do so

before the LRB had been unsuccessful.

[340] CSWU’s submissions with respect to the third element of the prima facie

discrimination analysis focussed on differences in salaries and other terms and conditions

of employment as between the Latin American and European workers. In addressing

these issues, CSWU addressed the Respondents’ evidence and arguments about the

comparative skills and experience of the Latin American and European employees. They

also made submissions with respect to the effect of the adverse treatment on the Latin

American workers’ human dignity.

[341] CSWU addressed the Respondents’ other submissions with respect to why the

Latin Americans were not discriminated against as potential justifications which should

be considered in the context of a BFOR analysis. In this context, CSWU made some

further submissions about the comparative skills and experience of members of the two

groups, as well as submissions about the payment of overtime (which was not pursued in

final argument by the Respondents), and SELI’s international compensation practices.

[342] Neither party really addressed the question of why these various issues should be

addressed either as part of the third element of the prima facie discrimination analysis or

as part of a BFOR analysis. Clearly, all of the potentially relevant issues raised by the

parties must be considered; the question is at what stage of the analysis. As the split

decision of the Supreme Court of Canada in McGill illustrates, it can be difficult to

decide whether particular issues and arguments should be addressed as part of the prima

facie case analysis, or as part of a BFOR analysis. As the McGill decision also

demonstrates, the decision where to address issues and arguments, while analytically

challenging, may have no effect on the ultimate outcome in a given case.

[343] In considering the question of where the various issues raised by the parties before

us should be placed in the analysis, we have found the O’Malley decision very helpful.

116

In that case, the Court decided where the burden of proof falls in complaints of

discrimination. The Court stated:

… at least in direct discrimination cases, where the complainant has shown

a prima facie case of discrimination on a prohibited ground, the onus falls

on the employer to justify if he can the discriminatory rule on a balance of

probabilities. The question then is whether this rule should apply in cases

of adverse effect discrimination.

To begin with, experience has shown that in the resolution of disputes by

the employment of the judicial process, the assignment of a burden of

proof to one party or the other is an essential element. The burden need

not in all cases be heavy – it will vary with particular cases – and it may

not apply one party on all issues in the case; it may shift from one to the

other. But as a practical expedient it has been found necessary, in order to

ensure a clear result in any judicial proceeding, to have available as a “tie-

breaker” the concept of onus of proof… To whom should it be assigned?

Following the well-settled rule in civil cases, the plaintiff bears the burden.

He who alleges must prove. Therefore, under the Etobicoke rule as to

burden of proof, the showing of a prima facie case of discrimination, I see

no reason why it should not apply in cases of adverse effect

discrimination. The complainant in proceedings before human rights

tribunals must show a prima facie case of discrimination: A prima facie

case in this context is one which covers the allegations made and which, if

they are believed, is complete and sufficient to justify a verdict in the

complainant’s favour in the absence of an answer from the respondent-

employer… It seems evident to me that in this kind of case the onus should

again rest on the employer, for it is the employer who will be in possession

of the necessary information to show undue hardship, and the employee

will rarely, if ever, be in a position to show its absence. The onus will not

be a heavy one in all cases…. (paras. 27 – 28) (emphasis added)

[344] The passage from the concurring judgment in McGill, cited above at paragraph

216, is to the same effect: The burden is on the complainant to establish a link between

group membership and the arbitrariness of the criterion or conduct, either on its face or in

its disadvantaging impact. Once the complainant establishes that link, the burden shifts

to the respondent to justify its prima facie discriminatory conduct.

[345] Taking these principles into account, we have concluded that the Respondents’

submissions based on Bitonti and Agduma-Silongan relate to whether CSWU has

established a nexus between the adverse treatment and the grounds of discrimination

relied upon. Further, the parties’ evidence and submissions about the comparative skills

117

and experience of the two groups of workers are relevant to the question of whether the

prohibited grounds are a factor in the adverse treatment CSWU has established. We

therefore consider these matters in the context of the third element of the prima facie case

analysis.

[346] The Respondents’ submissions about the significance of the parties’ collective

bargaining history are difficult to place within the analysis. For the purposes of this

complaint, we have chosen to address them within the prima facie case analysis.

[347] The Respondents placed very little emphasis on the currency exchange rate factor,

and led no reliable evidence about it, and, in our view, any difference attributable thereto

is so minimal as to be insignificant. They did not pursue any submissions based on the

significance of the payment or non-payment of overtime, other than noting whether

particular employees were or were not paid overtime, a matter we have already

addressed. We have also already addressed the Respondents’ submissions about the

significance of s. 12 of the Code in our analysis of whether members of the Complainant

Group experienced adverse treatment. It is not necessary to consider any of these issues

further.

[348] SELI’s international compensation practices, and their place in the global labour

market, formed the core of the Respondents’ defence to this complaint, and the

remaining question is whether those practices should be considered as part of the prima

facie case analysis, or as part of the BFOR analysis.

[349] Applying the principles established in O’Malley and confirmed in McGill, it is

evident that SELI’s international compensation practices are a defence which the

Respondents have put forward to justify the adverse treatment experienced by members

of the Complainant Group. The Respondents have, as described by the Supreme Court of

Canada in O’Malley, “for genuine business reasons adopt[ed] a rule or standard which is

on its face neutral”. Such a rule may, as in O’Malley, have an adverse effect on

employees because of a prohibited ground. Where that is the case, there is a prima facie

case of discrimination, and the burden shifts to the respondent to justify its conduct as a

BFOR. We repeat the key passage from O’Malley:

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