PART I - STATEMENT OF FACTS

Nature of the Appeal

1. Pay equity legislation, such as that contained in section 11 of the Canadian Human Rights Act, is designed to remedy a deep-rooted problem which results from systemic discrimination based on gender. As noted recently by this Court, "'Womens' jobs' are chronically underpaid". Pay inequity is the by-product of various hidden attitudes or forces which have the effect of undervaluing the work traditionally associated with women and therefore depressing the value of wages which are paid for that work. These attitudes and forces include gender-based occupational segregation and stereotypical assumptions about the nature of work performed by women. Like other examples of systemic discrimination, pay inequity is a difficult problem to address and therefore requires complex and sophisticated mechanisms to ensure that pay equity is achieved. Any legislative provision designed to combat the systemic discrimination which results in pay inequity should never be interpreted in a manner which restricts its effectiveness or undermines its purpose.

Canadian Human Rights Act, R.S.C. 1985, c.H-6 ("CHRA "), sections 2 and 11; Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381 (QL) at paras. 6, 30-31, and 39-45 and 52; Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 at 1132-1138.

2. The legislative history of section 11 of the CHRA demonstrates that it was designed to be a general tool to address systemic wage discrimination and, therefore, achieve pay equity. Through section 11, Parliament legislated the principle of pay equity but left the precise implementation of that principle to the Canadian Human Rights Commission ("CHRC" or "Commission") through the passage of Equal Wages Guidelines which have the force of law. As subordinate legislation, those guidelines can only be interpreted and applied in a manner consistent with section 11 of the Act.

Parliament, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, Issue No. 11, May 17, 1977, 2nd Session, 30th Parliament, 1976-77, at 11:23, 11:37-38, 11:46-47; Canada, House of Commons, Commons Debates, October 25, 1976, per: Hon. Ron Basford,

Minister of Justice, at 418; Canada, House of Commons, Commons Debates, February 11, 1977, per: Hon. Ron Basford, Minister of Justice, at 2976-2977, 2981, 2985-2986; Canada, House of Commons, Commons Debates, June 2, 1977, per: Hon. Ron Basford, Minister of Justice, at 6198, 6200; CHRA, supra, subsections 27(2), (3) and (4); Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884 at paras. 36-37 and 47-48.

3. This appeal is about ensuring that those guidelines are as effective as Parliament and the CHRC intended them to be in addressing systemic wage discrimination. This appeal ultimately concerns the question of establishment and when pay equity comparisons between bargaining units of employees of the same employer are appropriate given the language of section 10 of the Equal Wages Guidelines, 1986 ("Guidelines") and section 11 of the CHRA. The resolution of that question will be significant as this appeal deals with classical examples of occupational segregation - predominately female employees in the flight attendant group and predominately male employees in the pilot and technical groups. Indeed, the disposition of this appeal will largely determine the effectiveness of section 11 of the CHRA given that, if the position of the Appellant is accepted, comparisons designed to deal with the effects of occupational segregation would rarely be allowed in the unionized context.

Equal Wages Guidelines, 1986, S.O.R./86-1082, section 10; Decision of the Canadian Human Rights Tribunal dated Dec. 15, 1998, Appellant's Record, Vol. I, p. 29 ("Tribunal Decision"); Presentation by Professor Paul J. Weiler to the Federal Task Force on Pay Equity, Ottawa, June 28, 2002, Appellant's Book of Authorities, Tab 45, p. 12; Statement of Paul J. Weiler, Henry J. Friendly, Professor, Harvard Law School: Section 11 of the Canadian Human Rights Act, the Canada Labour Code and the Establishment Issue, Appellant's Book of Authorities, Tab 46, p. 10.

4. In the submission of the CHRC, there is little doubt that the Minister of Justice who introduced the CHRA, and more particularly section 11 of the CHRA, intended to redress the impact of occupational segregation at an employer such as Air Canada.

"...In addition, the provisions of the human rights bill have been strengthened with regard to the question of equal pay. Traditionally, those concerned about discrimination in employment practices have felt that the concept of equal pay for equal work would solve all our problems, and in the bill introduced last session the language employed to prevent this discrimination was the traditional concept of equal pay for equal work. After consultations with women's groups, I have been convinced that this language is inadequate to provide full guarantees against sexist discrimination on the job. The fact is that women are often not allowed to do work similar to that of men and they are hired and hived off into female work ghettos. Thus, they are often paid less, even though what they do is of equal value. To provide truly equal opportunity, regardless of sex, we have decided to accept the recommendation of the women's groups and to adopt the definition proposed by the International Labour Organization of equal pay for work of equal value as the governing criterion."

Canada, House of Commons, Commons Debates, October 25, 1976, per: Hon. Ron Basford, Minister of Justice, supra, at p. 418.

5. Moreover, at the time of the Debates surrounding the introduction of pay equity in Canada, it was acknowledged in the House of Commons that section 11would have a direct impact on the collective bargaining process. For example, Member Fairweather stated:

"To the extent that formal processes for comparison of jobs would be required by government, rather than merely encouraged or assisted, equal pay for work of equal value would carry with it a presumption of increased intervention by government in the collective bargaining and wage determination process. The question arises whether this is desirable or acceptable."

Canada, House of Commons, Commons Debates, February 11, 1977, per: Member Fairweather, supra, at p. 2981.

6. Contrary to the position of the Appellant, this appeal does not involve a conflict between human rights legislation and labour legislation. Indeed, although the Appellant asserts otherwise, at no point does the Appellant identify the specific legislative provisions said to be in conflict. Instead, the Appellant's position is based on a theory advocated by Professor Weiler as set out in his "statement" filed in a completely distinct case and in circumstances where he did not give direct evidence in the present case. In the submission of the CHRC, this theory is unsupported by concrete evidence and is without basis in law. In essence, the Appellant seeks to take the alleged impact of section 11 on collective bargaining - an impact which the CHRC maintains is not supported - and to use that to create a conflict between the Canada Labour Code and the CHRA. It is the submission of the CHRC that this does not demonstrate a conflict between the two Acts but, simply, illustrates the complex nature of pay equity and the tools chosen by Parliament to address it.

7. Nor does this appeal concern the issue of whether collective agreements are relevant to a determination of the establishment within which pay equity comparisons can be made. Indeed, a fair reading of the Reasons for Judgment of the Federal Court of Appeal reveals that the Court's conclusion in that regard was that specific provisions of collective agreements are the subject matter of a pay equity comparison and cannot, by definition, be determinative of the question of establishment. The Court has not concluded that the existence of collective agreements in general ought to be ignored.

Reasons for Judgment of Federal Court of Appeal dated Mar. 18, 2004, Appellant's Record, Vol. I, pp. 120, 121, 123, paras. 34, 36, 37, 40, 41 per Rothstein J.A.; pp. 126, 141-142, 145-146, paras. 49, 95, 106, 107 per Evans J.A. ("Court of Appeal Judgment").

8. In substance, therefore, this appeal will resolve a very simple question: how is section 11 of the Act, and section 10 of the Guidelines, to be interpreted and applied, having regard to Parliament's intent that section 11 should achieve the goal of eliminating systemic wage discrimination? The CHRC submits that the approach adopted by the Tribunal would clearly undermine the objectives of the CHRA in circumstances where no threat to the freedoms and obligations under the Canada Labour Code is at stake. By contrast, the Federal Court of Appeal adopted an interpretation of these provisions which did respect the intent of section 11 of the Act, the history of section 10 of the Guidelines, and the goal of the eradication of systemic discrimination in the form of pay inequity. It is the submission of the CHRC that, essentially for the reasons advanced by the Federal Court of Appeal, this appeal ought to be dismissed.

CUPE's Pay Equity Complaints

9. The CHRC is in general agreement with the history of these complaints as described by the Respondent, CUPE, in its factum.

10. Of the approximately 7,200 flight attendants in Air Canada who are the subject of this section 11 complaint, 80% are female. Flight attendants and the male-dominated comparator groups of pilots and technical personnel were, by Orders of the Canada Industrial Relations Board, each grouped in separate bargaining units, subject to separate collective agreements, for the purposes of collective bargaining under the Code. These bargaining units were deemed appropriate for collective bargaining on the basis of community of interest and other factors outlined in the Board’s jurisprudence. The complaints filed by CUPE alleged that the wages paid to flight attendants were discriminatory as compared to those of the pilots and technical personnel.

Tribunal Decision, Appellant's Record, Vol. I, pp. 6-7; See Factum of the Appellant, Air Canada, Vol. I, p. 7, para. 22.

11. The evidence established, and the Tribunal accepted, that there existed common policies applicable to the flight attendants, pilots and technical personnel in the following areas:

(a) providing various forms of indirect compensation, including pensions, health and disability plans, to all employees;

(b) common negotiating strategies were employed by the respondent employers and were developed centrally within the corporation and applied to all employee groups;

(c) many general human resource policies, including a Personnel Policy Manual introduced by CAIL, applied to all employees.

Tribunal Decision, Appellant's Record, Vol. I, pp. 30-33, 37-44.

12. Moreover, the evidence before the Tribunal confirmed that other commonly-applied policies were also in place, including human rights and sexual harassment policies, employment equity policies and an Employee Assistance Program.

Tribunal Decision, Appellant's Record, Vol. I, pp. 30-33, 37-44.

13. In the course of the hearing, the Tribunal refused to allow the Commission to present evidence regarding systemic wage discrimination and occupational segregation in support of its position on the proper interpretation of the term ‘establishment’. Indeed, the Tribunal expressly declined to consider the issue of systemic discrimination at all in examining the requirements of section 11 of the CHRA and section 10 of the Guidelines.

Transcripts, Chairperson's Ruling, Respondent's Record, Vol. I, pp. 6-35.

14. By its Decision dated December 15, 1998, the Tribunal found, among other things, that the Commission and CUPE had failed to establish that these three employee groups were employed in the same ‘establishment’ as required by section 11 of the CHRA and section 10 of the Guidelines. Since no male comparators were available to support the wage discrimination complaints made by the flight attendants, the complaints were rejected.

Guidelines, supra section 10; CHRA, supra, section 11; Tribunal Decision, Appellant's Record, Vol. I, pp. 56-57.

15. In reaching this decision, the Tribunal confirmed that, in most cases, each bargaining unit in a unionized workplace would represent a separate establishment. Furthermore, the Tribunal found that acceding to the CHRC's position would require an amendment to section 11 of the CHRA, even though the CHRA does not define establishment:

"The Commission’s arguments on systemic discrimination against women in occupationally segregated workplaces, if presented in Parliament and other fora, could well justify a legislative amendment to the CHRA which would eliminate the concept of establishment. This being stated, it must equally be firmly stated that it was beyond the mandate of this Tribunal to examine systemic discrimination against women in occupationally segregated workplaces under the CHRA in general and from that examination proceed to redefine the concept of establishment under section 11 of the CHRA which would counter such systemic discrimination. This is essentially a legislative function...

...As long as the concept of establishment exists in section 11 of the CHRA and as long as the Human Rights Tribunal accepts that it does not have a legislative function in our constitutional and democratic order, This Tribunal cannot ignore reality. That reality is the fact that each bargaining unit in a unionized workplace will, through collective bargaining, determine the vast majority of wage and personnel policies governing its members, as much of the testimony in the thirtyfive days of hearing before this Tribunal proved."

Tribunal Decision, Appellant's Record, Vol. I, pp. 50-51.

16. Applications for judicial review against the Tribunal’s decision initiated by both the CHRC and CUPE were dismissed by the Federal Court. The Court found that the Tribunal had correctly concluded that the flight attendant employees were not employed in the same 'establishment' as the pilots and technical services co-workers.

Judgment and Reasons for Judgment of the Federal Court, Trial Division (Hansen J.), dated July 27, 2001, Appellant's Record, Vol. I, pp. 58-104 ("Trial Division Judgment").

17. In separate Reasons for Judgment, the Federal Court of Appeal allowed the appeal against the decision of the Trial Division Judge. In essence, both Judgments recognized that collective agreements, and therefore bargaining units, cannot be determinative of establishment for the purpose of identifying comparator groups under section 11 of the Act. Further, given that section 11 holds the employer liable for pay inequity, the Court of Appeal recognized that the inquiry at this stage must search for a "policy" or general principles/approach adopted by the employer. As a rule, this policy will be common across all aspects of a single, integrated business and will, therefore, result in that business being determined to be an establishment. This approach was fundamentally consistent with the history of both section 11 of the Act and section 10 of the Guidelines. Finally, as noted by Justice Evans, this approach recognizes that all of the issues of concern raised by Air Canada were matters which went to the substance of a pay equity complaint and which could be addressed before the Tribunal during an inquiry into the merits of such a complaint.

Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 105-156.

PART II - QUESTIONS IN ISSUE

18. The Commission notes the manner in which the Appellant has characterized the questions in issue in this appeal at para. 49 of its factum. The Commission submits that the questions in issue should be framed as follows:

(a) Is there a conflict between law or policy contained in the Canadian Human Rights Act and section 11 in particular, on the one hand, and the Canada Labour Code on the other?

(b) What is the correct interpretation of the term "establishment" in a unionized setting, having regard to section 11 of the CHRA and section 10 of the Equal Wages Guidelines, 1986 ? and

(c) Did the Federal Court of Appeal err in holding that pilots, flight attendants and mechanics were within a single establishment under section 11 of the Act at each airline?