Section 10 of the Guidelines
49. It is fundamentally clear from section 11 of the Act that the Guidelines are necessary in order to give effect to the principle of equal pay for work of equal value. Accordingly, the Guidelines must be seen and interpreted as provisions which advance the purposes of section 11 of the Act. Like any other authority akin to a regulation, express language would be required in both the enabling legislation and in the guideline itself to allow the guideline to be used in a manner which limits or otherwise undermines the purpose which is sought to be achieved by the enabling statute. Clearly, the Equal Wages Guidelines, 1986 can only be interpreted in a manner which promotes the broad purpose of achieving pay equity.
Canada (Attorney General) v. PSAC
,
supra, at 199 to 200;
CHRA,
supra, section 2 and subsection 11(4).
50. Section 10 of the Guidelines achieves this goal through two mechanisms. First, section 10 indicates that "establishment" is inclusive; as such, the definition contained in section 10 is not intended to limit the definition of establishment in the manner asserted by the Appellant. Second, section 10, on its face, confirms that collective agreements ought not to be determinative of the issue of establishment. No wording other than "notwithstanding" needs to be employed in order to confirm this effect.
The Use of the Word "Include"
51. Although the Federal Court of Appeal disagreed, the CHRC submits that the word "include," and its French equivalent "comprend," was employed to ensure that establishment was given the broadest possible meaning. With respect, if the words "...the employees of an establishment include...all employees subject to a common personnel and wage policy..." must be read to limit the employee groups of a single establishment to those subject to a common personnel and wage policy, the use of the word "include" is completely unnecessary. However, it has long been established that the use of the word "include" is meant to expand the meaning of the word or expression it qualifies. Indeed, the Tribunal itself recognized that section 10 of the Guidelines are not exhaustive. As such, "include" confirms that the definition of "employees of an establishment" is not exhaustive.
Maxwell on Interpretation of Statutes, 12th ed., p. 270; See Canadian Pacific Ltd. v. Canada (Attorney General), [1986] 1 S.C.R. 678 at 687-688; See also New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at 375-378; Le Robert & Collins Senior Dictionnaire Français-Anglais/Anglais-Français, supra, "comprend".
"Notwithstanding Any Collective Agreement Applicable to Any Employees of the Establishment"
52. The Commission submits that the Tribunal erred in its interpretation of section 10 of the Guidelines, particularly in respect of the use of the word "notwithstanding". The Tribunal assumed that the CHRC position would mean that collective agreements would never be considered for the purposes of identifying the relevant establishment. The Tribunal reasoned that the word "notwithstanding" was not sufficiently clear to demonstrate that collective agreements should not be determinative of the question of establishment. In the result, the Tribunal effectively adopted an analysis which had the opposite effect - namely, that collective agreements would almost always be determinative of the question of establishment. The CHRC submits that this approach is not supported by the text and history of section 10, and the proper interpretation of section 11 of the Act.
Tribunal Decision, Appellant's Record, Vol. I, p. 29.
53. The Commission emphasizes that the issue of establishment is substantially different from the issue of the "wages" which must be compared once the complainant group and the comparator group are determined to be employed in the same establishment. Indeed, the Appellant relies on subsection 11(7) of the Act to argue that collective agreements must be relevant in the consideration of the issue of establishment. However, as emphasized by the Federal Court of Appeal, this subsection only applies once a comparison is being made between two groups - that is, once it has already been determined that two groups are within the same establishment. Accordingly, it is unhelpful in determining the proper meaning of establishment. This is particularly the case where the word "establishment", as used in section 10 of the Guidelines and section 11 of the Act, clearly relates to the employer's corporate structure or policy.
CHRA, supra
, subsection 11(7); Court of Appeal Judgment, Appellant's Record, Vol. I, p. 117, para. 25 per Rothstein J.A.; pp. 130, 145, paras. 62, 107 per Evans J.A.
54. This is also a complete answer to the submissions of the Appellant regarding the alleged inconsistent use of the word "wages" at paragraphs 94 to 98 of its factum. The Appellant incorrectly assumes that wages are relevant to the determination of establishment. As noted by the Federal Court of Appeal, that assumption is simply not supportable. This is particularly the case given that the use of the word "policy" in section 10 of the Guidelines must have regard to the purpose of section 11 of the Act.
Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 117-119, paras. 24-26, 29-31 per Rothstein J.A.
55. The Tribunal went so far as to conclude that the Commission’s approach required different language in section 10 of the Guidelines - namely, the addition of the words "to the contrary". The Commission submits respectfully that it is plain and obvious that the words "to the contrary" were not necessary to demonstrate an intention that collective agreements would not stand in the way of a finding that employees were in the same establishment. Parliament’s clear intent, from the very beginning, has been to ensure that the existence of bargaining units, and the separate collective agreements that they entail, could not be used as a basis for asserting that separate establishments existed such that no comparisons for the purposes of establishing equal pay for work of equal value could be made. Section 10 respects this intent by confirming that the existence of a collective agreement could not be used to defeat the achievement of pay equity.
Tribunal Decision, Appellant's Record, Vol. I, p. 29; Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 120-121, paras. 34-36 per Rothstein J.A.; pp. 127, 129, 143, 144, 155, paras. 52, 58, 99, 101 and 133-134 per Evans J.A.; Guidelines, supra, section 10.
The Practical Impact of a Functional Approach
56. The Tribunal repeatedly expressed concern that the Commission’s approach would lead to a "corporate definition" of establishment in almost every case. The Tribunal apparently reasoned that, as there would be very few fact situations in which the Commission’ s approach would not result in a corporate definition, this could not have been the intention of Parliament. The Commission submits that these concerns are not relevant.
Tribunal Decision, Appellant's Record, Vol. I, pp. 37, 40, 42-43.
57. To begin with, the CHRC approach does not change the definition of establishment which Parliament and the CHRC intended. It is a fact that most workplaces are organized in a manner which would result in an "establishment" which is equivalent to the existing corporate structure of the employer. To a large extent, therefore, the Tribunal’s concerns are not based on the Commission’s legal interpretation of the legislation but, rather, on the realities of the Canadian marketplace.
Court of Appeal Judgment, Appellant's Record, Vol. I, p. 119, para. 33 per Rothstein J.A.; pp. 129-130, 155, paras. 58-61 and 134 per Evans J.A.
58. Furthermore, there is no evidence that Parliament did not intend that establishment would, in most cases, be equivalent to the existing corporate structure of an employer. Indeed, one would have thought that, given the overriding importance of human rights legislation, section 11 of the Act would necessarily apply to most workplaces absent a very clear and unequivocal exception to the general rule.
Court of Appeal Judgment, Appellant's Record, Vol. I, p. 119, para. 33 per Rothstein J.A.; pp. 129-130, 155, paras. 58-61 and 134 per Evans J.A.
59. In this regard, it is extremely significant that the approach adopted by the Appellant would have the exact opposite result: namely, that establishment will be coincident with bargaining units in most cases. Indeed, both the Tribunal here and Professor Weiler, who testified as an employer witness in the Canada Post case, accepted that this would be the result. The CHRC submits that this approach is wrong as it is fundamentally inconsistent with the text and intent of section 11 of the Act. It is for this very reason that the Commission specified in section 10 of the Guidelines that collective agreements would not be determinative of the issue of establishment: to hold otherwise would render virtually every group subject to a single collective agreement to be a separate establishment, thereby substantially eviscerating the effectiveness of the Act.
Tribunal Decision, Appellant's Record, Vol. I, p. 29; Court of Appeal Judgment, Appellant's Record, Vol. I, p. 118, para. 28 per Rothstein J.A;. pp. 128-131, 137, 155, paras. 56, 58-61, 81, 133-134 per Evans J.A.; 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.
60. On this aspect, the Commission notes the submissions of the Appellant at paragraph 106 of its factum in which it maintains that provincial pay equity legislation generally "identifies 'establishment', where employees are unionized, with the bargaining units into which they are divided". In fact, the pay equity legislation in several provinces, including Prince Edward Island, New Brunswick, Nova Scotia, Quebec and Manitoba permit cross-bargaining unit comparisons to achieve pay equity. In many cases, the pay equity legislation in the provinces requires a single job evaluation plan for all bargaining units. In Ontario, the Pay Equity Act permits pay equity comparisons by proxy, using job and salary information form another public sector organization, in circumstances where a male comparator is not available to a female job class.
Pay Equity Act
, R.S.P.E.I. 1988, c.P-2,
supra, ss. 13, 14;
Pay Equity Act, C.C.S.M., c.P-13,
supra, ss. 8, 9;
Pay Equity Act, S.N.B. 1989, c.P-5.01,
supra, ss. 6, 7, 11;
Pay Equity Act, R.S.N.S. 1989, c.337,
supra, ss. 12, 18, 19;
Pay Equity Act, R.S.Q. c.E-12.001, s. 10;
Pay Equity Act , R.S.O. 1990, c.P-7,
supra;
Pay Equity Amendment Act, S.O. 1993, c.4.
61. The Tribunal acknowledged that a major conglomerate, even by the Commission’s approach, would not be determined to be a single establishment under section 11. This example illustrates precisely the proper purpose and interpretation of section 10 of the Guidelines. Major conglomerates might consist of separate establishments which are coextensive with the various branches of the conglomerate itself. Section 10 of the Guidelines is intended to prevent such major conglomerates from mounting a defence based upon the notion of establishment where there is a common wage and personnel policy. This is, of course, completely consistent with one of the inherent goals of pay equity legislation, which is designed to ensure that an employer’s pay policy is applied consistently and without discrimination.
Canada (Attorney General) v. PSAC
,
supra, at 194 to 195; Court of Appeal Judgment, Appellant's Record, Vol. I, p. 119, paras. 32, 33 per Rothstein J.A.; pp. 42-143, paras. 97-99 per Evans J.A.
62. Parliament’s intent that pay equity should only be achieved when there is a common pay policy at issue is demonstrated as well by subsection 11(3) of the Act, which deems separate establishments to be the same establishment where they have been established or maintained for the purposes of avoiding the obligations under the Act. In those cases, it would be plain that the same central actor is directing the pay policy which is applicable to ostensibly separate establishments.
CHRA, supra, subsection 11(3).
63. The CHRC notes the submissions on behalf of the Appellant at paragraphs 84 to 88 regarding the relevance of a "line of business" to the establishment analysis. The CHRC submits that there is no basis for the Appellant's concerns. To begin with, it is simply wrong for the Appellant to assert that "lines of business" are irrelevant to the question of establishment. As noted above, the definition of establishment set out in section 10 of the Guidelines is not exhaustive. A "line of business" could be relevant to the inquiry.
64. Secondly, the Appellant's position wrongly assumes that these are two distinct tests when they are simply different factors which may be relevant to the establishment determination. In the result, it would be open to a tribunal to find that there is a single establishment because there is a common personnel and wage policy and in spite of the fact that there is more than one line of business.
65. Finally, it is not the case that the Court of Appeal has adopted a different "line of business" test. The Court's references to "business" often refer to an integrated "business" or are designed to address the fact that a separate establishment would, essentially, be a separate business within a larger organization. Far from being inconsistent with the definition in section 10, this analysis is simply the natural result of section 10's plain meaning. The fact that the Court of Appeal only identified a "conglomerate" as an example of where there would be more than one establishment is simply a reflection of the reality that an employer with separate establishments in the Canadian marketplace would be rare.
Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 119, 123, paras. 32, 40 per Rothstein J.A.; pp. 139, 141-142, 144-145, 150, paras. 88, 93, 97, 98, 102,106, 119 per Evans J.A.
66. The CHRC notes the submissions at paragraph 51 of Air Canada's factum in its defence of the Tribunal's analysis. Air Canada argues that the Tribunal was apparently driven by a "need" to define establishment in section 11 in a way that does not "in practice" lead to equating employer with establishment. The CHRC submits that consideration of this need and this practical consequence are irrelevant to the task which the Tribunal was given. Instead, the Tribunal was required to focus on the plain meaning of establishment in light of the legislative history and purpose of section 11 and the mischief at which it was addressed, namely pay inequity. Air Canada's submissions only illustrate the error in the Tribunal decision, which tends to "create" difficulties in spite of the clear language of section 11 and its purpose.
67. In fact, it is noteworthy that, at no point, did the Tribunal properly analyse section 11 having regard to Parliament's intent when it was enacted before reaching its conclusion on the establishment issue. To the contrary, the Tribunal rejected the Commission's request to tender evidence of occupational segregation as an aid to understanding the nature of section 11.Tribunal Decision, Appellant's Record, Vol. I, p. 14; Transcripts, Chairperson's Ruling, Respondent's Record, Vol. I, pp. 6-35.
68. It would be surprising, to say the least, that Air Canada would not comprise a single establishment, given the overriding purpose of section 11 of the CHRA and Parliament's intent. The evidence established unequivocally that Air Canada was a single business entity involved in the transportation of passengers and freight. Employees in each of the groups which should be the subject of comparison for the purposes of demonstrating the presence or absence of pay equity were inherently involved in the central activities of Air Canada and, to a very large extent, complemented each other’s activities. Indeed, employees of Air Canada often work side by side with a view to ensuring the safe and efficient transport of passengers and goods. As any air traveller would know, from a single spot on an aircraft one can observe pilots engaging in all the actions necessary to prepare the plane for take off, flight attendants ensuring that passengers are safely in their seats and that the interior portions of the plane are suitable for flight, and technical workers ensuring that the various systems required in order for a plane to operate are in safe working order.
69. In fact, prior to the enactment of the Equal Wages Guidelines, 1986, the complainant and comparator groups which are the subject matter of the present complaint would have been considered to be within the same establishment. This is because, at that time, establishment was concerned only with geographic limits and was understood as such by both Parliament and the CHRC. If the position of the Appellant is upheld, it must be found that the intent of the CHRC in enacting section 10 of the Equal Wages Guidelines, 1986, was to limit or narrow the definition of establishment and, in effect, ensure that complaints such as the present one would not be successful. Not only is there is no evidence whatsoever that the CHRC intended to so limit the comparisons to be made under section 11 of the CHRA, the history of section 10 suggests the opposite: namely, that it was designed to ensure that defences raised by employers such as Air Canada would not prevail before a tribunal.
70. In any event, the Commission notes that, at paragraphs 89 to 93 of its factum, Air Canada criticizes the majority Judgment of the Court of Appeal for relying upon a document which is not legally enforceable and which speaks only to Air Canada's intention to abide by its own legal obligations. This argument, however, misses the point adopted by the Federal Court of Appeal and expressed in section 10 of the Guidelines. The search for the employer's "policy" which results in systemic discrimination is not a search for a legally enforceable document. Instead, the inquiry is directed at those practices of an employer - cumulatively identified as a "policy" which result in systemic wage discrimination. The correct approach is clear from section 11 itself, which is directed only at the actions of an employer.
71. Furthermore, the Appellant criticizes the majority Judgment for basing its conclusion regarding establishment on a single very general policy document prepared by Air Canada. The CHRC submits that Air Canada's argument in this regard is unsupportable. Clearly, while Justice Rothstein found that this document was "conclusive", he did not say that this was the only evidence which supported his findings. Indeed, this document was referred to expressly because it was an example of evidence which the Tribunal wrongly ruled to be irrelevant.
Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 121-123, paras. 37-41 per Rothstein J.A.
72. In any event, as noted above and by the Respondent, CUPE, there was ample evidence to support the conclusion that Air Canada is an establishment for the purposes of section 11. Indeed, as found by Justice Evans:
"It is not seriously disputed that Air Canada operates an integrated business and that, subject to its ability to negotiate agreements with the union representing its employees, it is responsible for setting wages and employment policy for the employees in question. Accordingly, I do not attach as much significance as my colleague, Rothstein J.A., to the anodyne document 'Air Canada's Labour Relations Policy and Principles'."
Court of Appeal Judgment, Appellant's Record, Vol. I, p. 144, para. 102 per Evans J.A.; Factum of the Respondent, Canadian Union of Public Employees (Airline Division), paras. 17-29.
No Conflict Between Human Rights Legislation and Labour Legislation
73. The CHRC submits that the intent, and the effect, of the position adopted by Air Canada would be to oust the supremacy of the CHRA on the basis of the alleged negative impact of the Court of Appeal Judgment on collective bargaining under labour relations legislation. In short, it is the position of the Appellant that employers ought not to be concerned with the impact that a collective agreement governing one bargaining unit may have on a collective agreement governing another bargaining unit, particularly in circumstances where the two bargaining units are gender-stratified. In effect, this is not a plea for harmony between human rights legislation and labour legislation but is an assertion that the policy in support of free collective bargaining inherent in labour legislation must prevail over section 11 of the CHRA.
74. The jeopardy to Parliament’s intent in enacting section 11 posed by importing labour law policy and structures is clear. Bargaining units are determined by labour boards on the basis of community of interest considerations, including similarity of working conditions and job qualifications. These characteristics make sense as organizing principles for collective bargaining; however, by definition, these characteristics also describe patterns of occupational segregation that coincide with systemic sex-based wage discrimination. It is this coincidence that section 11 is intended to address and which, if used as the basis upon which section 11 is applied, has the potential to defeat Parliament’s intent.
See para. 28, supra.
75. Therefore, the position adopted by the Appellant strikes at the heart of the quasiconstitutional status of the CHRA. Furthermore, this position, although based upon an alleged inconsistency between human rights legislation and labour legislation, will have the effect of entrenching the wage discrimination caused by occupational segregation. This is because the labour relations policy which underlines the determination of bargaining units, together with the collective bargaining system under labour relations statutes, have not been able to address the wage gap caused by such systemic discrimination. This Court has emphasized that, in the human rights context, where a choice must be made between competing interpretations, any interpretation which further entrenches systemic discrimination ought to be rejected. There is no reason why this approach should not be applied to the present case.
British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., supra, at paras. 39-42.
76. Furthermore, bargaining strength has been recognized as a factor which is problematic in the context of ensuring that human rights are guaranteed through labour relations processes. As Professor Weiler admits, groups of workers performing female-predominant work tend to have less bargaining strength. It is simply not self-evident, as Professor Weiler suggests, that women can effectively use collective bargaining to achieve pay equity. This is borne out in this case in which there is clear evidence of a lack of bargaining strength on the part of the flight attendants. Section 11 is the only means that flight attendants have to attain their right to pay equity. Indeed, as noted recently by the Task Force on Pay Equity,
"...The process of collective bargaining as it has evolved in Canadian workplaces is not the best means of ensuring that human rights principles are respected." Pay Equity Task Force Report, supra, at 447; See also, "Report of Dr. Pat Armstrong, Expert Witness, in response to Statement of P. Weiler", PSAC v. Canada Post Corporation, at p. 9.
77. Furthermore, there is no evidence which supports the chaos theory advocated by the Appellant and Professor Weiler. While there is little doubt that collective bargaining in light of section 11 is made more difficult, chaos has not resulted. Section 11 has existed for over 25 years with no palpable negative impact on collective bargaining relationships during that period. Simply put, the result of the Court of Appeal's Judgment is that employers will be required to have regard to section 11 in the negotiation of their collective agreements - a result which is mandated by the quasi-constitutional nature of human rights legislation in any event.
78. The untenable nature of Professor Weiler’s proposed interpretation of section 11 as an answer to the question before this Court is borne out by his own acknowledgement of its limitations. He recognizes that, in some circumstances, the gender-based disparity in wages will be so stark that the labour law concept of "unit" in defining "establishment" must be overridden. However, his statement that this situation be dealt with explicitly by Parliament is no answer to the challenges presented by this appeal. In contrast, the Judgment of the Federal Court of Appeal that the Commission seeks to uphold, provides a cogent and comprehensive answer.
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. 18.
79. The Appellant sees problems with the fact that different bargaining units may have different negotiating strengths and may also elect to prioritize their bargaining demands in different ways, thereby leading to collective agreements which ought not to be compared for pay equity purposes. The theory behind this approach is that, because the collective agreements are arrived at based on a number of various factors, it would be inappropriate to saddle the employer for liability, particularly insofar as many of those factors are based upon the interests of the membership of the bargaining units concerned.
80. Once again, these arguments are based upon the flawed assumption that labour relations policy can override the requirements of human rights legislation. In any event, all of these issues can be addressed by the Tribunal in the course of an inquiry into the merits of any section 11 pay equity complaint. As noted by Justice Evans:
"First, bargaining strength may well be the non-gender-related factor that explains wage differences between flight attendants on the one hand, and pilots and maintenance mechanics on the other. The fallacy of this argument is its assumption that differences in bargaining power, and hence in the wages paid to men and women performing work of equal value, have not been gender-related. In fact, the labour market has historically been highly gendered. It has been segregated by gender in that some jobs have overwhelmingly been performed by men, while others have typically been performed by women. "Women's work" has been systemically undervalued. An important goal of pay equity legislation is to remedy the discriminatory effects of the operation of a gendered labour market.
Second, members of some male dominated bargaining units are often interested in different items than members of female dominated bargaining units. For example, it was said, male dominated bargaining units may be more interested in obtaining the highest possible rate for the job than other benefits, such as longer paid holidays, flexible hours, and "personal days" off work. Whereas, it was argued, women may be more interested in non-monetary "life-style" benefits because they often bear primary responsibility for their families."
Court of Appeal Judgment,. p. 138, paras. 83, 85 per Evans J.A; See also pp. 123-124, paras. 42-46 per Rothstein J.A.
81. In this regard, the Commission emphasizes the views expressed by Dr. Pat Armstrong, who has been qualified as an expert in job evaluation and pay equity in several cases including the Canada Post case in which Professor Weiler testified. In the view of Dr. Armstrong,
"Equating establishment with bargaining unit as Professor Weiler does would undermine the purpose of equal pay for work of equal value because bargaining units are themselves reflective of the segregation and undervaluing that equal pay for work of equal value is intended to address. Moreover, unequal pay for work of equal value cannot be justified on the basis of bargaining strength, as Professor Weiler suggests, because bargaining strength also often reflects systemic discrimination."
"Report of Dr. Pat Armstrong, Expert Witness, in response to Statement of P. Weiler", at p. 2.
82. Furthermore, it is implicit in the position adopted by Air Canada that the exercise of the freedom to contract by employers and unions ought to prevail, for policy reasons, such that those contracts cannot effectively be reopened through the vehicle of a section 11 pay equity complaint. According to Professor Weiler, by resisting the position taken by Air Canada, the notion of free collective bargaining would be affected and the employer would be prevented from accepting choices made by the bargaining agent - in the form of a collective agreement - because they resulted in wages which were contrary to section 11 of the CHRA.
83. With respect, this position is essentially a call to ignore various statutory requirements simply because they make exercising the freedom to contract more difficult. The reality is that any contract - whether between an employer and a union, a commercial supplier and a purchaser, or a transportation provider and a passenger - is negotiated in the context of many statutes, regulations, and other binding legislative instruments which have been passed by governments in the public interest. One need only consider the substantial legislative restraints on various commercial enterprises which have been imposed by governments through the regulation of products and their transportation. Nevertheless, commerce, and the freedom of contract necessary to effect commerce, thrives in Canada in spite of these constraints and within the limits imposed by Parliament and other legislatures. There is no reason why Air Canada should be exempt from these constraints simply because they may have some impact on the collective bargaining process.
84. Another premise of the position adopted by Air Canada is that the Federal Court of Appeal has rejected the notion that collective agreements should be examined when determining the scope of an establishment for the purposes of section 11 pay equity comparisons. However, a fair review of the Reasons of the Federal Court of Appeal reveals that the Court did not conclude that collective agreements should never be considered. Instead, it is clear from the Reasons of both the majority and the minority that the specific terms of collective agreements ought not to be determinative of the question of establishment as those are matters which are considered after establishment is identified. In other words, it is logically inconsistent to allow the "wages" which must be compared within an establishment to actually dictate what that establishment is. Instead, the establishment must be determined first, following which the "wages" are compared, as set out in the terms of the collective agreements in question.
See, for example, Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 113, 120, 121, paras. 16, 34, 36 per Rothstein J.A.; pp. 126, 145-146, paras. 49, 106-107 per Evans J.A.
85. For example, the Court of Appeal repeatedly indicates that the terms or details of collective agreements are not required to be reviewed when determining the scope of the establishment. As noted by Justice Rothstein:
"I do not arrive at the same conclusion [urged by Air Canada]. While section 10 does not expressly exclude consideration of collective agreements (and here I agree with the Tribunal and the Trial Division Judge's textual analysis of the phrase "notwithstanding any collective agreement applicable to any employees of the establishment" in section 10), neither does it mandate their consideration. The question is one of interpretation and for the reasons I have given, I have concluded that consideration of the details of collective agreements at the stage of determining whether employees are employed in the same establishment is premature." [Emphasis added]
Court of Appeal Judgment, Appellant's Record, Vol. I, p. 121, para. 36, per Rothstein J.A.
86. Justice Rothstein's analysis here is driven by the fact that the Guidelines require an identification of the "personnel and wage policy" of the employer. As noted by Justice Rothstein, there is a significant difference between "policy" and "policies" for pay equity purposes. In the context of pay equity and the mischief of systemic discrimination it is designed to address, policy clearly refers to the overall approach adopted by an employer in setting wages which is systemic in nature and therefore which is not identifiable by specific terms and conditions of employment:
"Determining whether the employee groups at issue are in the same establishment is a precursor to the substantive exercise of comparing the value of work being performed and the respective remuneration being paid to members of the groups at issue. The precise details of working conditions and remuneration, including benefits, found in the collective agreements are matters to be considered at the substantive stage. I therefore agree with the Commission that the definition of establishment should not be based on the myriad of details found in collective agreements."
Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 117-119, paras. 25, 29-32 per Rothstein J.A.
87. Similarly, Justice Evans recognized that the focus on policy in the Guidelines is a direct response to the systemic nature of wage discrimination, particularly that which results from occupational segregation. Since it was designed precisely to ensure that all employees affected by occupational segregation are included in the pay equity field of comparison, it is not necessary to look at specific terms and conditions of employment to determine who should be compared. Instead, the Tribunal must identify the overall policy or approach of the employer:
"If, as the Commission contends, the phrase "subject to a common personnel and wage policy" has to do with the location in the corporate structure of responsibility for setting employment policy, it is simply irrelevant whether the terms of collective agreements are sufficiently similar that the employees to whom they apply can be said to be "subject to a common personnel and wage policy".
This argument assumes that the existence of "a common personnel and wage policy" is to be inferred from the terms and conditions of employment. But, as I have attempted to demonstrate, the words, "subject to a common personnel and wage policy", are normally better interpreted as referring to persons employed in the same business enterprise. Hence, the function of the "notwithstanding" phrase in section 10 is simply to make it clear that all employees subject to "a common personnel and wage policy" (because they are employed in the same business) are employed in "the same establishment", whether or not a collective agreement applies to any of them.
This is to say that, contrary to the view advocated by some employers prior to the adoption of the final version of the 1986 Guidelines, section 10 provides that the existence of a collective agreement does not create a separate personnel and wage policy. Consequently, since the terms of a collective agreement are normally not relevant to whether the employees to which it applies are subject to "a common personnel and wage policy", it would have made no sense to add to the "notwithstanding" phrase the words, "to the contrary"."
Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 141, 145, paras. 95, 106, 107 per Evans J.A.
88. As noted above, this approach makes sense from a principled perspective, a textual reading of both section 10 of the Guidelines and section 11 of the CHRA, and the intention of Parliament when enacting section 11 of the CHRA. There is also a significant practical element to this approach which makes sense. The reality is that an employer's existing corporate structure, and the manner in which the employer approaches the determination of wages within that structure, exist separately from the collective agreements that the employer negotiates. Indeed, this corporate structure - and the policy which results - necessarily precedes and is a precursor to any collective agreement which the employer would negotiate.
89. The CHRC notes the submissions of Air Canada regarding the Court of Appeal's Interpretation of the word "policy" in section 10 of the Guidelines and the application of that section to Air Canada's particular policy. At paragraphs 99 to 100, Air Canada relies on the Interpretation Act requirement that the singular includes the plural and therefore asserts that the use of the word "policy" instead of "policies" in section 10 of the Guidelines is not significant. The CHRC submits that the Interpretation Act does not assist in this case. In most cases, the Interpretation Act provision regarding the singular and the plural apply in circumstances where a legislative provision is relevant to an item or a class of items. The provision is simply not relevant in circumstances where the singular version of the word denotes a distinct meaning from the plural.
90. In the present case, the word policy can be construed as having two meanings. The first meaning, which is the one relied upon by Air Canada, is a particular document or set of terms governing an issue (for example, an insurance policy or a maternity leave policy). In that case, the distinction between the singular and the plural would not matter and the Interpretation Act would have the effect that Air Canada identifies. The approach adopted by the Federal Court of Appeal, as well as the CHRC, in both the Guidelines and before this Court, is that the word "policy" in section 10 of the Guidelines has a second, substantially different, meaning. It does not refer to a specific item or type of policy but, rather, it refers to the more general notion of a practice or approach. This makes sense, given that section 11 of the Act is designed to address systemic practices which would result in a "policy" which have the effect of causing wage discrimination. In short, the "policies" that Air Canada relies upon are not the same as a multiple of the "policy" referred to by the CHRC.
Conclusion
91. This case has always been about the proper approach to the interpretation of human rights legislation and Parliament's goal of achieving pay equity in federally-regulated workplaces. In the submission of the CHRC, the Judgment of the Federal Court of Appeal is in accord with a long line of human rights jurisprudence of this Court and with Parliament's original intent in enacting section 11 of the CHRA. In plain terms, the approach adopted by the Federal Court of Appeal is consistent with the objective of eradicating gender-based wage rate discrimination. For the reasons set forth herein, the Commission submits that the Judgment of the Federal Court of Appeal should be sustained.