PART III - STATEMENT OF ARGUMENT
Standard of Review
19. It is well established that the standard of review of a decision of a Human Rights Tribunal respecting the interpretation of a general question of law is correctness. This is particularly the case where there is no privative clause insulating the Tribunal in question, where the Court has greater expertise interpreting the question of law than the Tribunal, where the issue of law has wide social implications, where it affects the jurisdiction of the Tribunal to deal with complaints and where the ruling calls for an interpretation of the statute in light of the purpose of the Act. As stated by the Supreme Court in O’Malley, "it is for the courts to seek out [the human rights legislation’s] purpose and give it effect."
Ontario Human Rights Commission and O’Malley v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 at 547; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at 585; Voice Construction Ltd. v. Construction and General Workers Union, Local 92, [2004] 1 S.C.R. 609 at para. 29; Toronto (City) v. CUPE, Local 79, [2003] 3 S.C.R. 77 at paras. 67 and 70-71.
20. The CHRC has noted the submissions on behalf of Air Canada at paragraph 112 alleging that the Court of Appeal failed to consider the standard of review. This is not the case. In fact, before the Court of Appeal, the parties agreed that the correctness standard was applicable and the Court of Appeal accepted that as a proper characterization of the law. The CHRC submits respectfully that the Federal Court of Appeal was correct on this aspect.
Court of Appeal Judgment, Appellant's Record, Vol. I, p. 109, para. 7 per Rothstein J.A.; pp. 126, 132, paras. 49, 50, 68 per Evans J.A.
This Appeal Only Concerns Human Rights Legislation and its Proper Interpretation
21. This is a human rights case. The appeal calls for the Court's interpretation of section 11 of the CHRA and section 10 of the Equal Wages Guidelines, 1986. No specific provision of the Canada Labour Code is at issue here. As such, the case is not about the intersection of human rights principles and labour relations principles. Nor could it be, given the clear expression of Parliamentary intent that the CHRA will:
"...extend the laws in Canada to give effect...to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices..."
CHRA, supra, section 2.
22. The CHRA, like all human rights legislation, is fundamental law which is quasiconstitutional in nature. Consistent with this status and the requirements of the Interpretation Act, the legislation must be given a broad interpretation which extends its application and which advances its essential purposes - that is, the elimination of discrimination. Accordingly, where the provision being interpreted is in the nature of a defence to an allegation of discrimination or has the effect of limiting the scope of the protection provided by the CHRA, the issue must be scrutinized carefully such that any restrictions or limitations are minimized. As stated by this Court, we should not search for ways and means to minimize human rights or to enfeeble their proper impact. In fact, where a human rights provision may admit of different interpretations, it is imperative that the provision be interpreted in a manner which most advances the protection and promotion of human rights.
Canadian National Railway Co.
v.
Canada (Human Rights Commission),
supra , at 1132-1138;
Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at 338-339;
O’Malley,
supra, at 547;
Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 F.C. 789 (C.A.) at 805;
Interpretation Act, R.S.C. 1985, c.I-21, s.12;
CHRA,
supra, s.2.;
B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403 at para. 44;
Brossard (Town) v. Quebec (Commission des droit de la personne), [1988] 2 S.C.R. 279 at 307, 321-322;
Canada (House of Commons) v. Vaid, [2003] 1 F.C. 602 (C.A.) at paras. 9-11 and 50; Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 114-115, paras. 18-19 per Rothstein J.A.; pp. 126-130, paras. 50-61 per Evans J.A.
23. Moreover, this Court has ruled that human rights legislation must be practically enforceable; accordingly, the remedies must be effective, consistent with the 'almost constitutional' nature of the rights protected. Canadian equality jurisprudence has thus developed a results-based systemic approach to discrimination. In this context, this Court has ruled that human rights and equality rights under section 15(1) of the Charter guarantee 'substantive' rather than 'formal' equality, achieving equality of outcome. Substantive equality thus requires the transformation of mainstream discriminatory norms, such as systemic pay inequity.
Law v. Canada (Minister of Employment and Immigration)
, [1999] 1 S.C.R. 497 at paras. 23-39;
British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 at paras. 41-42.
24. The principle of equal pay for work of equal value, or pay equity, is general in nature and must therefore be informed by a variety of considerations. It is fundamental to have a full and complete understanding of the systemic discrimination which section 11 of the CHRA is designed to eliminate, including the evidence of pay equity experts respecting how the principle is to be operationalized in a particular context. As was noted by Justice Evans,
"Reverting to section 11, I cannot attribute to Parliament an intention that, by enacting the principle of equal pay for work of equal value, it thereby provided a definitional blueprint of such specificity that its implementation in any given context inevitably involves the Tribunal in questions of statutory interpretation, an hence of law, that are reviewable on a standard of correctness in an application for judicial review.
... Accordingly, it is consistent with Parliament’s intention that the "living tree" of the Act should be nourished by the experience of other jurisdictions in dealing with the social injustice at which section 11 is aimed: systemic wage discrimination for work of equal value resulting from the historical segregation of the labour world by gender, and the undervaluation of women’s work. I see nothing in the statement of legislative purpose in section 2 that precludes this approach.
... no interpretation of section 11 can ignore the fact that the mischief at which it is principally aimed is the existence of a wage gap that disadvantages women, as a result of gendered segregation in employment and the systemic undervaluation of the work typically performed by women."
Canada (Attorney General) v. Public Service Alliance of Canada
, [2000] 1 F.C. 146 (T.D.) at 181-183, 187-188 & 215; See also excerpts from Hansard referred to above at para. 2.
25. Similarly, in the DND section 11 pay equity case, the Federal Court of Appeal discussed in great detail the nature of systemic discrimination as it was "critical to an appreciation of the issues" raised. Indeed, only this approach will ensure that Tribunals are able to understand, correct and redress the historical wrongs which have been caused by systemic discrimination. This is merely another way of stating and adopting the "mischief" rule of statutory interpretation, which requires courts to examine legislation in light of the mischief at which it was directed at the time it was passed.
Public Service Alliance of Canada v. Canada (Department of National Defence), supra, at 802 and 808-810; R. Sullivan, Essentials of Canadian Law: Statutory Interpretation, at 108; Heydon’s Case (1584), 76 E.R. 637 (Ex. Ct.); R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 196-197 and 216-218.
Occupational Segregation and Pay Inequity
26. Systemic discrimination has deep roots in historical employment practices. One practice which has been accepted as a cause of such systemic discrimination, resulting in pay inequity, is gender segregation in employment. Gender segregation essentially involves the creation of separate units, areas or types of work, intentionally or by effect, which are predominately of one gender. It has the effect of affirming the mistaken view that certain types of work are best performed by men and other types of work are best performed by women. To the extent that qualifications for women’s work are seen as being related to the traditional roles of women in the home and in society, the skill, effort, responsibility and working conditions of jobs in these "ghettos" are undervalued or ignored and, ultimately, under-compensated. The pervasiveness and depth of the roots of systemic wage discrimination are reflected in the fact that legislatures across Canada have enacted pay equity legislation.
Service Employees International Union, Local 204 v. Ontario (Attorney General)
(1997), 35 O.R. (3d) 508 (Gen. Div.) at 526 to 528, and 533 to 534;
Women’s College Hospital, No. 4 (1992), 3 P.E.R. 61 at 65 to 68;
Haldimand-Norfolk, (No. 3), [1989] O.P.E.D. No. 3 at paras. 39-44; Application for Judicial Review dismissed at [1989] O.J. No. 1995 (Ont. Div. Ct.), aff’d [1990], 41 O.J. No. 1745;
Public Service Alliance of Canada v.
Department of National Defence,
supra, at 798 to 806;
P.S.A.C. v. Canada (Treasury Board) (No. 3), [1998] C.H.R.D. No. 6 (QL) at paras. 219-247; N. Weiner & M. Gunderson,
Pay Equity: Issues, Options and Experiences (Toronto: Butterworths, 1990) (extracts), Respondent's Record, Vol. III, pp. 508-537;
Pay Equity Act, R.S.O. 1990, c.P-7;
Pay Equity Act, R.S.P.E.I. 1988, c.P-2;
Pay Equity Act, C.C.S.M., c.P-13;
Pay Equity Act, S.N.B. 1989, c.P-5.01;
Pay Equity Act, R.S.N.S. 1989, c.337;
Nfld. v. N.A.P.E.,
supra.
27. In fact, occupational segregation is so pervasive that it has remained a consistent feature of Canadian workplaces across the board and for more than one hundred years. For example, in one study, it was found that, in half of the employers, jobs were completely segregated by sex. Among the 520 occupations found across Canada, only 20 occupations employ at least 60 percent women. Moreover, in the early 1900s, 60 percent of all female workers could be found in three occupations - teaching, domestic service and sewing. In the 1980s, 60 percent of all female workers could still be found in only three broad occupations - clerical, service, and sales work. This occupational pattern has, for the most part, continued unchanged to the present time. As noted recently by the Federal Pay Equity Task Force, occupational segregation continues to be a "major obstacle" for women. In the view of the Task Force,
"...It remains evident that there is a clear link between women's occupational segregation and their relative lower wages and salaries. In other words, the greater the proportion of women in an occupation, the lower the relative pay."
Pay Equity Task Force: A New Approach to a Fundamental Right, Final Report, 2004, p. 22; N. Weiner & M. Gunderson, Pay Equity: Issues, Options and Experiences, supra, Respondent's Record, Vol. III, at 516-517; Abella J., Report of the Commission on Equality in Employment (October 1984), Respondent's Record, Vol. I, at 158-162; Andrew Jackson: Work and Labour in Canada: Critical Issues (Toronto: Canadian Scholars' Press Inc., 2005) pp. 79-80 and 86-91.
28. It is noteworthy that the unionization of Air Canada, and the establishment of bargaining units at Air Canada, occurred squarely in the middle of this last one hundred years. Significantly, the purpose of such bargaining units is to ensure that the employees within them share a sufficient community of interest and commonality of working conditions to support collective bargaining. It is for this reason, for example, that clerical work and blue collar work are routinely separated into different bargaining units. In the result, the bargaining unit configuration at Air Canada simply entrenched pre-existing occupational segregation, with "female work" present only in the flight attendant bargaining unit.
Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 136-139, paras. 80-88 per Evans J.A.; See evidence referred to at para. 22 of Air Canada Factum, Vol. I, p. 7; Usarco Limited, [1967] O.L.R.B., Rep. 526 at paras. 12-14; Air Canada (Re), [2001] C.I.R.B.D. No. 44 at paras. 21-23 and 61-69.
29. Pay equity legislation is but one of the many tools which may be employed in order to reduce the wage gap which adversely affects workers who are paid for what is considered to be "female work". As noted above, given that collective bargaining had existed for decades at the time of the introduction of pay equity legislation, Parliament obviously intended that the CHRA would supersede the existing collective bargaining regimes, which had not been able to close the wage gap caused by systemic discrimination in employment. Any possible doubt on that issue was addressed by the language employed in section 2 of the CHRA, which clearly affirmed the primacy of human rights legislation over any and all other federal laws.
30. In this regard, the CHRC notes that the essence of the "conflict" theory advanced by the Appellant relates to the principles regarding the organization of bargaining units and the negotiation of collective agreements applicable to single units only. For reasons set out in more detail below, it is the position of the CHRC that there is no conflict between these two legislative regimes, particularly given both the clear statutory provisions and the fact that there is nothing to preclude parties to a collective bargaining relationship from negotiating collective agreements in light of human rights standards. Indeed, this Court has repeatedly confirmed that parties cannot contract out of human rights legislation.
Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324
, [2003] 2 S.C.R. 157 at para. 28.
Section 11 Was Passed to Address, Inter Alia, Occupational Segregation
31. It is clear section 11 of the CHRA was passed by Parliament in order to deal with the systemic wage rate discrimination caused by phenomena such as occupational segregation. In fact, the Minister of Justice who introduced the CHRA confirmed expressly that section 11 was directed at ameliorating the historic effects of occupational segregation and the lower wage rates which had been - and still are - paid to women. Since there is no doubt that bargaining units often entrench patterns of occupational segregation, there is equally no doubt that Parliament understood that section 11 would have a direct impact on such bargaining units and the collective bargaining relationship between employers and unions representing those bargaining units.
See Commons Debates referred to at para. 2.
32. Significantly, the pay equity mandated by section 11 of the CHRA was a substantial extension of the requirement of equal pay for equal work which had existed in legislation such as the Canada Labour Code. Equal pay for equal work requires only that women be paid the same as men when they do the same, or a substantially similar, job. The principle of equal pay for work of equal value is broader and involves job comparisons made on the basis of the relative value of different jobs. Job evaluation instruments have, in response, been developed which can evaluate the skill, effort, responsibility, and working conditions of completely different types of work, as required by section 11 of the Act.
Labour Standards, Equal Wages, February 1977, Labour Canada, Respondent's Record, Vol. VII, pp. 1323-1326; Court of Appeal Judgment, Appellant's Record, Vol. I, p. 140, para. 90 per Evans J.A.; Nan Weiner and Morley Gunderson: Pay Equity: Issues, Options and Experience (Toronto: Butterworths Canada, 1990), at pp. 61-64.
33. The passage of section 11 of the CHRA was consistent with Canada's international obligations under a variety of international instruments and was coincident with the international trend of addressing systemic wage discrimination problems in the human rights context instead of the labour relations context given the latter's inability to fully deal with the issue. The CHRC submits that these international treaties and conventions should inform the contextual approach to the proper interpretation of section 11 of the Act and section 10 of the Guidelines. As noted by the Pay Equity Task Force,
"From this brief review, it will be evident that Canada has, on a number of occasions, signified its acceptance of international accords which recognize the principle of equal pay for work of equal value, and which represent a commitment to implement measures, such as gender-neutral job evaluation exercises, to ensure that the principle is carried out in practice.
By ratifying these international covenants, Canada has bound itself to uphold rights articulated by the international community."
Pay Equity Task Force Report, supra, at p. 60, see also pp. 52-63; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 860-861, para. 69 -70; R. v. Sharpe, [2001] 1 S.C.R. 45 at 140-141, paras. 175-176; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241 at 266-267, paras. 30-32; Convention Concerning Equal Remuneration for Men and Women for Work of Equal Value, (ILO Convention No. 100), 29 June 1951, 165 U.N.T.S. 303 (entered into force 23 May 1953); International Covenant on Economic, Social and Cultural Rights. 16 December 1966, 993 U.N.T.S. 3; International Covenant on Civil and Political Rights. 16 December 1966, 999 U.N.T.S. 171; Convention on the Elimination of All Forms of Discrimination Against Women. G.A. Res. 34/180, GAOR, 34th Sess., Supp. No. 46 at 193 (1979); Report of the Royal Commission on the Status of Women in Canada, (Ottawa: Information Canada, 1970), at paras. 196-197, 201, 239.
34. Needless to say, section 11 of the CHRA would have a particularly significant impact incases where occupational segregation is a central factor in causing systemic discrimination given that, by definition, the work being compared would be different. It would be hard to imagine, therefore, that Parliament did not intend section 11 to remedy pay inequity between bargaining units such as those which existed at Air Canada at the time of the passage of section 11.
35. Furthermore, bargaining unit structure, and the pattern of collective bargaining, at Air Canada is typical and would be replicated in a number of other unionized workplaces across the country. Accordingly, the position of Air Canada would result in most, if not all, unionized workplaces with more than one bargaining unit being precluded from the benefit of section 11 as employees in female-dominated bargaining units would not be comparable to employees in male dominated bargaining units. Indeed, both the Tribunal in this case, and Professor Weiler in the Canada Post case, have conceded this effect. The CHRC submits that Parliament could not have intended this result. Instead, Parliament intended that the CHRA would be supreme and would override alleged concerns as identified by the Appellant.
Tribunal Decision, Appellant's Record, Vol. I, pp. 29; 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.
The Purpose of the Establishment Requirement in Section 11
36. Section 11 prevents wage discrimination as between female-dominated and maledominated groups of employees within a single ‘establishment’. The establishment, therefore, necessarily defines and limits the field of comparison which is available to found a section 11 complaint. At no time has Parliament attempted to define, or limit, the term ‘establishment’ in the CHRA. By its plain meaning, "establishment" connotes a place of business or private institution and refers to a single business entity, company, going concern, or firm. It exists separate and apart from the employees within the establishment and, therefore, the wages which are paid to those employees. Furthermore, "establishment" may be contrasted with the word "conglomerate", which implies a diversified business entity with separate branches, each of which might have a separate pay policy. As such, employees will not be considered to be in the same establishment if they were employed in what are effectively separate business entities.
CHRA
,
supra; Extract from Green Paper on Pay Equity, Ontario, Respondent's Record, Vol. I, at p. 186;
The Canadian Oxford Dictionary (Don Mills: Oxford University Press, 2001),"conglomerate", "establishment";
Le Robert & Collins Senior Dictionnaire Français-Anglais/Anglais-Français, "etablissé ment";
The New Oxford Thesaurus of English (Oxford: Oxford University Press, 2000) "conglomerate", "establishment".
37. A review of the legislative history of section 11 demonstrates that the word "establishment" was employed precisely to deal with concerns which might arise in cases where an employer operated significantly different business entities in different regions of the country which might be subject to variable regional rates of pay. Moreover, given the purpose of section 11 of the Act, it is clear that "establishment" is intended generally to refer to a single employer with a pay policy which affects both complainant and comparator groups.
Canada (Attorney General) v. PSAC
,
supra, at 194 to 195 and 202 to 203; 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,
supra, at 11:37-38.
38. Air Canada suggests that the Commission on Equality in Employment recommended that the definition of establishment be amended in order to allow for comparisons between bargaining units at employers such as Air Canada. Air Canada argues that this recognizes that establishment is not as broad as the CHRC maintains. In fact, however, the Commission on Equality in Employment found that a factor in the failure of equal pay legislation to decrease the general earnings gap between men and women has been the requirement that comparisons occur within a single firm. The Commission on Equality in Employment cautioned that this approach did little to remedy the systemic nature of occupational segregation and wage discrimination for the substantial number of women who work in businesses where no or few men are employed, thereby restricting male comparators. In short, the Report of the Commission on Equality in Employment did not state that bargaining unit structure is the reason for identifying "establishment" as a potential barrier to the enforcement of federal equal pay law.
Extract from Equality in Employment, A Royal Commission Report, October 1984, Respondent's Record, Vol. I, pp. 151, 156, 174; Air Canada Factum, Vol. I, pp. 3, 34, paras. 8 and 105.
39. It is also significant that the language of section 11 is specifically directed against the wage policy or practice of an employer which, on a systemic basis, leads to the undervaluing of work performed by predominantly female employee groups. Given the focus on a central "employer" and its wage policy, it is not surprising that the comparison must be made within the same establishment - in this way, employees are prevented from comparing themselves to groups that are completely outside of the purview of the same general wage policy.
40. The right approach to the interpretation of section 11 and the word "establishment" is well illustrated by the facts of this case. The complainant groups are composed of flight attendants - a job which has traditionally been staffed by female employees. By contrast, the comparator groups - namely, pilots and technical support - are composed of jobs which have, historically, been staffed by male employees. This case therefore represents a classic example of occupational segregation which might lead to systemic wage discrimination. Indeed, many of the assumptions which lead to the undervaluation of female work because of job segregation - that females work only for "extra" or "pin" money, that, as persons who serve others, female flight attendants are only doing what comes naturally, and that female flight attendants work under easy working conditions - illustrate the need for a comparison to be made as between flight attendants and these other comparator groups.
The Development of Guidelines Dealing with Establishment
41. As the body charged with implementing section 11 of the CHRA, the Commission struck the Task Force on Equal Pay for Work of Equal Value to analyse and make recommendations on the scope and content of Guidelines relating to section 11 of the Act. The history of consultations on the Guidelines, and the evolution of the Guidelines themselves, demonstrates that, at no time, did the CHRC intend establishment to be any less broad than its plain meaning. Indeed, the early discussions regarding the Guidelines issued by the CHRC confirmed that the main concern was addressing regional or geographical differences in rates of pay. This is consistent with Parliament's concerns as well. In March 1978, the Task Force issued the following observations:
(a) complaints which depend upon regional differences in wages shall not be a basis for establishing a complaint made under section 11 [para. 1.3.4.]; and
(b) regional rates were excluded from the list of reasonable factors justifying wage differences in the original Guidelines as the concept was found to be sufficiently dealt with by the references to ‘establishment’ in section 11 of the Act [paras.2.1.3(a) & 2.2.3.].
Equal Pay for Equal Work, Report of the Task Force, Canadian Human Rights Commission, March 1978, Respondent's Record, Vol. II, pp. 211-249; NOTE: Background Notes on Proposed Guidelines - Equal Pay for Work of Equal Value, March 1985, Respondent's Record, Vol. II, p. 263; Court of Appeal Judgment, Appellant's Record, Vol. I, p. 147, para. 112 per Evans J.A.
42. In the result, the Equal Wages Guidelines, 1978, did not attempt to clarify the scope of an ‘establishment’ for the purposes of section 11 of the CHRA. ‘Establishment ’ therefore had a distinctly geographic connotation and was understood as such by both Parliament and the Commission.
Background Notes on Proposed Guidelines - Equal Pay for Work of Equal Value, March 1985, Respondent's Record, Vol. II, pp. 269-272.
43. In March 1985, the Commission issued ‘background notes’ on its proposals for new Guidelines to be issued under the Act. Among other things, the Commission noted that it favoured a ‘functional’ approach. Its proposed Guideline on ‘establishment’ stated:
"Establishment will be determined by reference to the personnel and compensation policies and practices of the employer rather than a geographic location or unit of organization. Employees of an employer shall be considered to be in the same establishment when they are subject to a common set of personnel and compensation policies, regulations and procedures; and when these policies, regulations and procedures are developed and controlled centrally even though their administration may be delegated to smaller units of organization."
Background Notes on Proposed Guidelines - Equal Pay for Work of Equal Value, March 1985, Respondent's Record, Vol. II, p. 274.
44. The Commission’s rationale for this proposed change included the following:
"Workers would be considered to be in the same establishment when they are subject to a common set of personnel and compensation policies, regulations and procedures, and when these matters are controlled centrally, even if their administration is delegated to smaller units of the organization.
This approach addresses for example, the situation where employees in different physical locations or regions are subject to the same collective agreement. With a geographical definition of establishment it might be possible to limit the scope of a remedy to the geographic or organizational unit where the complainant is located, even when there are others subject to the same conditions in other locations.
It thus goes far towards resolving the difficulties that prompted Judge Abella [in the Royal Commission Report] to recommend that reference to establishment be deleted from section 11.
To amend section 11 in this fashion would oblige the [Commission] to issue formal guidelines on regional rates of pay in order to exclude the impact of regional disparities - which are beyond the Commission’s mandate - from considerations of sexual discrimination."
Background Notes on Proposed Guidelines - Equal Pay for Work of Equal Value, March 1985, Respondent's Record, Vol. II, pp. 251-264.
45. The Commission sought the advice of interested parties in respect of the proposed Guidelines. A number of parties expressed a concern that the term ‘establishment’, as proposed, could be interpreted as precluding comparisons between groups of employees grouped in separate bargaining units, or comparisons between unionized and non-unionized employees. Of particular significance were the comments advanced by Labour Canada, the arm of the federal government responsible for administering, in part, portions of the Canada Labour Code:
"The second [consideration not covered by the then-existing wording of the Guideline] is an apparent exclusion of the right to make a comparison between white and blue-collar workers in a complaint because they are typically subject to different personnel and compensation policies and practices. It is presumed that white and blue-collar comparisons are to be permitted as therein lies perhaps, the greatest area of sex discrimination in pay."
Letter from Jennifer McQueen, Deputy Minister, Labour Canada to R.G.L. Fairweather, Chief Commissioner, Canadian Human Rights Commission, dated May 15, 1985, Respondent’s Record, Vol. VII, pp. 1345-1346; Letter from Daryl Bean, National President, Public Service Alliance of Canada to R.G.L. Fairweather, Chief Commissioner, Canadian Human Rights Commission, dated June 26, 1985, Respondent’s Record, Vol. VII, pp. 1298-1314 at 1298-1301, 1311-1312; Letter from Richard Mercier, Executive Vice-President, Canadian Labour Congress to R.G.L. Fairweather, Chief Commissioner, Canadian Human Rights Commission, dated June 4, 1985, Respondent’s Record, Vol. VII, pp. 1315-1318; Letter from J.L. Manion, Secretary of the Treasury Board to RG.L. Fairweather, Chief Commissioner, Canadian Human Rights Commission, dated May 17, 1985, Respondent’s Record, Vol. VII, pp. 1271-1274; Memorandum from Greg Blake, Labour Canada, to Ted Ulch, Canadian Human Rights Commission, dated May 21, 1985, Respondent’s Record, Vol. III, pp. 407-412; Court of Appeal Judgment, Appellant’s Record, Vol. I, pp. 150-151, paras. 117- 119 per Evans J.A.
46. On the basis of these consultations, the Commission redrafted the March version of the Guidelines in September of 1985. This revised version added regional rates of pay to the list of reasonable factors that would justify wage differences under section 11. Further, this draft included a more specific provision regarding the impact of collective agreements on the field of comparison under section 11:
"The definition of 'establishment' proposed in the September draft was as follows: Establishment will be determined by reference to the personnel and compensation policies and practices of the employer rather than a geographic location or unit of organization.
Employees of an employer shall be considered to be in the same establishment when they are subject to a common corporate policy which is controlled centrally even though their [sic] administration may be delegated to smaller units of organization. For greater certainty, a collective agreement between an employer and a bargaining agent is not considered to be a corporate personnel and compensation policy." [Emphasis added.]
Memorandum from T.N. Ulch, Chief, Equal Pay Section to Members of the Commission, dated September 11, 1985, Respondent’ s Record, Vol. VII, p. 1348; Court of Appeal Judgment, Appellant’s Record, Vol. I, p. 151, paras. 120-121 per Evans J.A.
47. Notably, in an accompanying explanatory memorandum, the Chief of the Equal Pay Section at the CHRC explained that:
"The language of the guideline on establishment will be changed to ensure that it reflects the intent of the Commission to define establishment as broadly as possible. There was concern expressed [during the consultation process] that the present wording could be interpreted in a sense that would limit an establishment to a single collective bargaining unit." [Emphasis added]
Memorandum from T.N. Ulch, Chief, Equal Pay Section to Members of the Commission, dated September 11, 1985, Respondent's Record, Vol. VII, p. 1348; Court of Appeal Judgment, Appellant's Record, Vol, I, p. 152, para. 122 per Evans J.A.
48. The September 1985 draft provoked some strong reactions, particularly from employers, as they believed that it was incorrect to suggest that a collective agreement would not be a separate compensation policy. Nonetheless, the Commission ultimately adopted section 10 of the Guidelines as follows:
"For the purpose of section 11 of the Act, employees of an establishment include, notwithstanding any collective agreement applicable to any employees of theestablishment, all employees of the employer subject to a common personnel and wage policy, whether or not such policy is administered centrally." [Emphasis added]
Guidelines, supra
, section 10; Court of Appeal Judgment, Appellant's Record, Vol. I, pp. 152-153, paras. 123-127 per Evans J.A; Morley Gunderson, Program Planning Criteria Applied to Design Features of Equal Value Legislation, revised March 1987, Respondent's Record, Vol. VIII. p. 1463.