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Appendix V: Chronologies of Two Major Cases

The chronologies below detail how two of the more heavily-litigated pay equity cases have unfolded. They help to illustrate some of the challenges associated with the existing federal provisions.

Canadian Telephone Employees Association, the Communications, Energy, and Paperworkers Union, and Femmes-Action v. Bell Canada

• Pay equity complaints filed by individual Bell employees.

• Bell and unions undertake a joint pay equity study.

• Commission agrees, at the parties’ request, to use the joint study as the basis for assessing the pay equity complaints.

• Final Report of the joint study finds that female-predominant work is underpaid.

1993

• Commission reviews joint study results.

• Bell and unions agree to an initial payment to begin correcting wage discrimination.

1994

• Systemic pay equity complaints filed by the unions and an ad hoc employee group called Femmes-Action, alleging that wage discrimination identified by the joint study remains.

• Commission attempts, without success, to mediate a settlement.

1995

• Commission circulates a final investigation report.

• In its comments on the report, Bell casts doubt, for the first time, on the joint study results.

• Commission circulates a revised final investigation report.

1996

• Commission refers systemic complaints to the Human Rights Tribunal for adjudication, while keeping the individual complaints to the side pending the outcome of the Tribunal hearings.

• Bell applies to the Federal Court for judicial review of the referral to the Tribunal.

• Bell applies to the Federal Court for judicial review of the Tribunal’s decision to begin hearing the case.

• Bell brings a motion before the Federal Court asking to have the hearings stayed. The motion is rejected by the Federal Court, Trial Division and the Federal Court of Appeal.

• Bell brings preliminarymotions before the Tribunal requesting: a stay of proceedings pending Federal Court decisions; the removal of one Tribunal member because of an "apprehension of bias"; an end to hearings because the Tribunal is allegedly not impartial or independent; and cancellation of the complaints because of alleged vagueness.

• All four motions brought before the Tribunal are rejected. Bell makes four applications to the Federal Court for judicial review in respect of each of the motions. The Court hears only the application in respect of the motion regarding the Tribunal’s independence and the remaining three applications are stayed.

1997

• Federal Court hearings into Bell’s applications for judicial review.

• Federal Court, Trial Division rules in favour of Bell’s first application, and quashes referral of the complaints to the Tribunal.

• Federal Court of Appeal overturns this decision, restoring the referral of the complaints to the Tribunal, confirming that unions have the right to file complaints, and upholding the fairness of the Commission’s investigation. Bell’s request for leave to appeal this decision is rejected by the Supreme Court, with costs awarded to the complainants.

• Federal Court, Trial Division issues its ruling on the independence of the Tribunal and finds that the Tribunal is insufficiently independent. The government amends the Canadian Human Rights Act to address concerns raised by the Court.

• A new tribunal is named to adjudicate the Bell complaints.

• Bell brings another motion challenging the independence of the Tribunal, arguing that the CHRA amendments were inadequate. The motion is dismissed by the Tribunal. Bell applies for judicial review.

• Bell brings procedural motions before the Tribunal asking it to reject the complaints because they were allegedly not filed in a timely manner, are too vague, and were filed by unions which, it is claimed, do not have the right to lodge such complaints. The Tribunal rejects these motions, and Bell applies for judicial review.

• Bell brings a procedural motion before the Tribunal asking it to reject the complaints on the grounds that they are made in bad faith, since they concern bargained wages. This motion is eventually deferred to the end of the Tribunal hearings.

• Bell brings a procedural motion before the Tribunal requesting the exclusion of joint study evidence it deems confidential.

• Bell brings a procedural motion before the Tribunal asking that the other parties be compelled to disclose how the Commission obtained joint study evidence. This motion is eventually withdrawn.

• Bell and the two unions attempt to reach a settlement of the complaints. Tentative agreements are rejected in voting by the members of both unions.

• The Tribunal dismisses Bell’s procedural motion concerning allegedly confidential evidence. Bell applies for judicial review.

• The Federal Court, Trial Division dismisses Bell’s applications for judicial review of the Tribunal’s decisions concerning timeliness, vagueness, the role of unions, and confidentiality. Bell appeals the dismissal of its application on confidentiality to the Federal Court of Appeal.

• The Commission asks to amend two complaint forms. The Tribunal refuses the request, and the Commission applies for judicial review.

• Bell brings a procedural motion asking that the Commission be prohibited from retaining the services of a law firm which has previously litigated pay equity cases for bargaining agents. The Tribunal refuses the request.

• The Federal Court, Trial Division accepts Bell’s argument that the Tribunal is still insufficiently independent, and hearings into the complaints are again suspended. The other parties appeal this decision to the Federal Court of Appeal. Case to be argued in Spring 2001.

Public Service Alliance of Canada v. Government of the Northwest Territories

• Complaint filed by union under CHRA sections 7, 10, and 11.

• Union and GNWT agree to a pay equity initiative termed the Joint Equal Pay Study (JEPS).

• Commission decides to attend JEPS meetings and use the study results as part of its investigation.

1989-91

• JEPS is carried out.

1992

• JEPS Final Report is issued.

• Commission reviews JEPS results and provides the parties with an analysis of sex-based wage differences, encouraging settlement negotiations.

1993

• Commission investigation report is completed, and a conciliator appointed.

• GNWT applies to the Federal Court for judicial review of the referral to a conciliator, arguing that the Commission lacks the jurisdiction to deal with the complaint and alleging an "apprehension of bias" because Commission investigators are represented by the PSAC.

1996

• Federal Court, Trial Division accepts GNWT’s argument on apprehension of bias and quashes the referral to conciliation. The Commission appeals.

1997

• Federal Court of Appeal reverses the Trial Division ruling, restoring the referral to conciliation. Supreme Court subsequently denies GNWT leave to appeal this decision.

• Commission refers pay equity portions of complaint to the Tribunal (sections 7 and 11), while continuing to examine a portion dealing with the GNWT’s classification system (section 10).   

• GNWT applies for judicial review of the decision to "sever" the complaint in this fashion.

1998

• GNWT files a procedural motion asking that the Tribunal not adjudicate the complaint because it lacks the necessary independence. The Tribunal rejects the motion, and GNWT applies for judicial review.

1999

• Federal Court, Trial Division rules that the Commission’s decision to "sever" the complaint against GNWT is not reviewable. GNWT appeals.

• Commission decides to take no further proceedings on the portion of the complaint dealing with the GNWT’s classification system, as that system has been superceded by another. Neither party objects, and the GNWT discontinues its appeal on "severing".  

• GNWT brings three procedural mot ions before the Tribunal: a motion for particulars, a request that hearings be held in Yellowknife, and a motion to have the complainant union added as a respondent to the complaints. All are rejected by the Tribunal, and the GNWT applies for judicial review.

• The Tribunal agrees, at the request of the union, to discontinue the section 7 part of the complaint. GNWT unsuccessfully applies for judicial review of this decision.

• Federal Court, Trial Division decides that the GNWT, as part of the federal Crown, cannot legally challenge the independence of the Tribunal.

2000

• GNWT appeals the Trial Division decision that it cannot legally challenge the Tribunal’s independence.

• Tribunal orders GNWT to produce for its inspection documents over which GNWT claims cabinet privilege. GNWT successfully applies for judicial review of this decision. Federal Court rules that the Tribunal had no jurisdiction to review the documents over which Cabinet privilege is claimed. The Commission and the complainant bring a joint application pursuant to Section 37 of the Canada Evidence Act. Then Federal Court removes some portions of the documents and then forwards them for the Tribunal’s review to determine whether there are other valid grounds of privilege.

• Federal Court, Trial Division dismisses the GNWT’s applications for judicial review of Tribunal decisions on particulars, location of hearings, and the addition of the union as a respondent.

• The Commission and the Public Service Alliance of Canada brought a motion before the Tribunal challenging a great many documents claimed to be privileged by the GNWT. The GNWT brought a similar motion challenging relatively few of the documents claimed to be privileged by the Public Service Alliance. The Tribunal reviewed the documents as well as those documents referred to it by the Federal Court following the Section 37 application. The Tribunal found that almost all documents were privileged.