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Federal Court of Appeal: Cashin v. Canadian Broadcasting Corporation, of 1988 The applicant was denied continuing employment by the CBC after the appointment of her husband, a well-known public figure in Newfoundland, to the Board of Directors of Petro Canada. The basis for this refusal was that the local listening audience might perceive the applicant as lacking objectivity in reporting on resource issues because of the prominent position of her husband in that field. Initially, the applicant’s complaint to the Canadian Human Rights Commission was dismissed. The Federal Court of Appeal later reversed that decision and the applicant’s complaint was referred to a single adjudicator sitting as a Human Rights Tribunal, who found that the CBC’s action constituted discrimination on the basis of marital status contrary to ss. 7 and 10 of the Human Rights Act without any redeeming justification as a bona fide occupational requirement under s. 14. The CBC appealed successfully from the adjudicator’s decision. The applicant then applied to the Federal Court of Appeal attacking the Review Tribunal’s decision under s. 28 of the Federal Court Act. The Court granted the s. 28 application, set aside the decision of the Review Tribunal, and reinstated the decision of the adjudicator. The Court’s decision turned on whether discrimination based on marriage to a particular person constituted discrimination on the basis of marital status contrary to ss. 7 and 10 of the Human Rights Act. The Court found that in this case it did, since the CBC’s denial of continuing employment to the applicant was based in part on her adoption of her husband’s surname as her own. It was held that discrimination based on an incident of marriage so intimately linked to marital status merited the protection afforded by the human Rights Act. The Court also found that, having based its decision on a purely subjective assessment of the public’s perception of the applicant’s objectivity, the CBC had failed to justify its discriminatory conduct on the basis of a bona fide occupational requirement under s. 14 of the Human Rights Act. Federal Court of Appeal: Canada (Attorney general) v. Druken, of 1989 The Federal Court held that the Canadian Human Rights Act had primacy over other federal legislation so that, even where discriminatory practices are apparently authorized by such legislation, they may be challenged under that Act. In the Druken case, the Court held that provisions in the Unemployment Insurance Act which precluded persons from collecting unemployment insurance benefits when they have worked for their spouse, discriminated on the basis of family and marital status, contrary to the Canadian Human Rights Act. Leave to appeal to the Supreme Court of Canada was denied. Federal Court: O’Connell v. Canadian Broadcasting Corporation, of 1991 The three complainants were female video technicians employed by the Canadian Broadcasting Corporation in Calgary. While each possessed the necessary experience and skills, they were denied access to mobile assignments that they considered desirable in terms of job environment, career development and additional remuneration. At the same time, male employees in the same job category with similar seniority and experience were receiving those assignments and the attendant benefits even though the complainants had made it clear that they were interested in and available for the assignments in question. The three women filed a complaint alleging that they had been adversely differentiated because of sex. The Tribunal upheld their complaint and awarded damages for lost income, for lost opportunity and for injury to self-respect. The employer appealed to a Human Rights Commission Review Tribunal. The Review Tribunal dismissed the appeal noting that the original Tribunal had not erred in its interpretation of the facts. There was substantial evidence to support the complainants’ position and therefore the complainants had established a prima facie case of discrimination. The employer’s explanation that differential treatment could be justified on the grounds of the creative licence accorded to the producers involved in various productions was inadequate and pretextual. The employer applied for judicial review of the Review Tribunal’s decision arguing that the Review Tribunal had applied an improper test as to the nature of the burden of proof on the employer and had erred in finding the employer’s explanations inadequate and pretextual. The application for judicial review was dismissed. Both the original Tribunal and the Review Tribunal understood the case presented to them as well as the burden of proof that had to be met. Further, the Review Tribunal was right when it decided the original Tribunal was acting properly and within its jurisdiction in rejecting the explanation of CBC and in affirming the finding of discrimination on the basis of sex. There was ample evidence adduced before the original Tribunal upon which it could so decide. Federal Court: Canadian Union of Public Employees (CUPE) v. Wardair Canada Inc., of 1996 The union alleged that Wardair’s dress code and grooming regulations discriminated against its employees on the basis of sex, colour, national or ethnic origin and age. An investigating officer recommended that the complaint be dismissed because all employees, both male and female, were subject to the same rules. In reaching his conclusion, the investigator did not interview any of the individuals named in the complaint. The Commission, acting on the basis of the investigator’s report and on letters from six union representatives challenging the report, dismissed the complaint. The union appealed the Commission’s decision. The appeal was dismissed. Because the complaint centred around a document, the employer’s dress code, rather than allegations of actual prejudice, the investigator was justified in acting on the letters of the complainants as opposed to going on to interview them personally. Further, since the investigator considered that all flight attendants, male or female, were required to adhere to the same dress code, it did not appear that the employer pursued a policy or practice that differentiated adversely against female flight attendants. His recommendation that the complaint be dismissed was reasonable. The Public Service Alliance of Canada (PSAC) filed a complaint of discrimination contrary to the Human Rights Act in respect of job classification and pay equity for women employees of the government of the Northwest Territories. PSAC sought elimination of discriminatory wage rates, implementation of a gender neutral job evaluation system and retroactive compensation to March 1988. Both PSAC and the government agreed that hard data was needed to assess the merits of the complaint. A joint project was established (Joint Equal Pay Study (JEP report).). Both parties signed the JEP report upon its completion. The Canadian Human Rights Commission subsequently appointed an investigator to look into the complaint. The investigator, as a public servant was required to pay union dues to PSAC, but chose not to join the union. Later, a second investigator was appointed. The second investigator was a full-fledged voting member of PSAC. Neither had any personal connection to the government or Union of Northern Workers, a "component" of PSAC. The investigators completed their report. The Commission decided to appoint a conciliator under s. 47 of the Canadian Human Rights Act to attempt to settle the complaint, adopting the recommendations by the investigators in their report. The government sought judicial review of that decision, claiming that the Commission lacked jurisdiction to deal with the complaint because of s. 63 of the Act and that there was reasonable apprehension of bias on the part of the investigators because of their involvement with PSAC. The Federal Court of Canada, Trial Division, in a decision reported 112 F.T.R: 167, allowed the application and set aside the Commission’s decision. The Commission had jurisdiction to deal with the complaint. However, there was a reasonable apprehension of bias on the part of one of the two Commission investigators, which tainted the investigation report and the Commission’s decision, which adopted the investigator’s recommendations. PSAC appealed and the Commission cross-appealed the finding of bias. The government cross-appealed the finding of jurisdiction. The Federal Court of Appeal allowed PSAC’s appeal and the Commission’s cross-appeal, holding that there was no reasonable apprehension of bias. The Court dismissed the government’s cross-appeal, holding that the acts and omissions of the government were within the scope of the Act. Canada (Attorney General) v. Public Service Alliance of Canada, of 1999. This is a case involving the judicial review of a Canadian Human Rights Tribunal decision which held that the Federal Government violated section 11 of the Canadian Human Rights Act by maintaining differences in wages between male and female employees employed in the same establishment who are performing work of equal value. In upholding the Tribunal decision, Justice Evans noted that the policy motivating the enactment of the principle of equal pay for work of equal value is the elimination of systematic discrimination in the workplace which results from A the application over time of wage policies and practices that have tended to ignore, or to undervalue work typically performed by women. Justice Evans stated that in trying to understand the extent of such discrimination “it is important to be able to view as comprehensively as possible the pay practices and policies of the employer as they affect the wages of men and women”. In Justice Evans’ views, the methodology accepted by the Tribunal allowed for such a comprehensive comparison while “the methodology proposed by the Treasury Board would enable the Tribunal to examine only a small amount of the available data”. Federal Court, Trial Division: The Attorney General of Canada v. Magee (T.D.), of 1998 Magee was separated from her husband, who had a career with the Canadian Armed Forces. The couple was still married when the husband passed away in 1985. Magee’s application for a widow’s pension under the Canadian Forces Superannuation Act was denied because she was separated from her husband at the time of his death, contrary to the entitlement provisions of the Act. Magee filed a complaint alleging that she has been discriminated against on the basis of marital or family status. The Human Rights Commission investigated the complaint and requested that an inquiry be made regarding the complaint. The Attorney General of Canada brought an application for judicial review, claiming that the Commission did not have the jurisdiction to order an inquiry. The application for judicial review was granted, the decision of the Commission was set aside and the Human Rights Tribunal was prohibited from inquiring into the respondent’s complaint. The Canadian Human Rights Act exempts from the application of the Act any and all pension plans or superannuation plans established by Parliament prior to 1 March 1978. The Act under which Magee sought widow’s benefits was established in 1959 and was amended various times both before and after 1 March 1978. Magee had argued that the post-1978 amendments to the Act "re-created" or "re-established" the Act so that it could not be said to be the same pension plan as was established in 1959 and that, therefore, the Commission had jurisdiction to hear the complaints. Magee had further argued that the provisions of the Canadian Human Rights Act should be broadly construed. The Court found that the language of the Canadian Human Rights Act clearly and unambiguously excluded the plan to which Magee sought an entitlement. Given that Parliament did not address the effect of legislative amendments to the pension or superannuation pans established prior to 1 March 1978, there was no reason to accept that the amendments had the effect of creating a new plan. Federal Court: Dumont-Ferlatte and Gauthier v. Employment and Immigration Commission, of 1998 Under the collective agreements which applied to the complainants, the accumulation of vacation and sick leave credits and the monthly payment of the bilingualism bonus were limited to employees who received pay or salary for at least 10 days in each calendar month. The collective agreements also provided for maternity leave without pay, and so women who took maternity leave were not eligible for the benefits in question, since they were not receiving any pay. The complainants filed complaints with the Human Rights Commission against their employers and their union, alleging that the refusal to provide them with these benefits was discrimination on the basis of sex. The Human Rights Tribunal dismissed the complaints, on the basis that, not only was maternity leave without pay given the same treatment as other unpaid leaves, such as sick leave or paternity leave, but it had better benefits. The complainants sought judicial review of this decision. The decision of the Tribunal was upheld. The Court concluded that the Tribunal was correct to compare maternity leave with other forms of leave without pay provided for in the collective agreement, such as paternity leave without pay, adoption leave without pay, leave without pay for education and training and leave without pay for union activities. The other forms of leave without pay are treated in the same manner as maternity leave. There was no distinction among the various forms of leaves without pay with respect to accumulation of vacation and sick leave credits and the monthly payment of the bilingualism bonus. In fact, there were superior benefits for maternity leave, in particular with respect to long-term disability benefits. Pregnant women who took time off work for maternity leave were therefore not treated differently from other groups of employees who took leave of the same nature, and therefore there was no error in the decision of the Tribunal. The applicants were nurses employed in a federal correctional service. The nurses were all parties to the same collective agreement. The applicants filed grievances under the Public Service Staff Relations Act (PSSRA) alleging sexual harassment in employment, contrary to their collective agreement. The agreement contained a provision that imposed an obligation on the employer to keep the workplace free of sexual harassment. The adjudicator dismissed the grievances on the basis of the ruling in the decision Chopra v. Canada wherein it was held that the adjudicator in that case lacked the jurisdiction to hear a matter concerning sexual discrimination despite a "no discrimination clause" in the collective agreement. In that case, the complainant was directed to seek redress before the Human Rights Commission. The adjudicator in the case at hand was of the opinion that nothing turned on the distinction between a "non discrimination clause" and a "no sexual harassment clause". The complainants sought judicial review of the dismissal. The applicants contended that no other tribunal, including the Canadian Human Rights Commission, provided an administrative procedure for redress of their grievance alleging a breach of the collective agreement and, as such, their grievances under the PSSRA should be allowed. The application for judicial review was dismissed. The PSSRA limits the jurisdiction of adjudicators to cases where no administrative procedure for redress is provided in another Act of Parliament. Three important decisions of the Federal Court had ruled that in cases such as the one at hand, where the central issue was within the jurisdiction of the Canadian Human Rights Commission, an adjudicator under the PSSRA lacked jurisdiction. In the current case, sexual harassment was the only issue, an issue that was dealt with in the discrimination provisions of the Canadian Human Rights Act. Although the decisions from the Trial Division were not binding on one another, there were no conflicting decisions on the matter. Like cases should, where possible, be treated alike. The appellant had argued that the previous decisions had not considered the fact that unions could not be parties to proceedings under the Canadian Human Rights Act. The Court disagreed, finding that the previous decisions did consider the "labour relations reality". Finally, the Court accepted the conclusions from the previous decisions that the fact that proceedings under the PSSRA and the Canadian Human Rights Act differed was not a relevant consideration. Franke joined the Armed Forces in 1981, when she was 20 years of age. She was voluntarily released from service in 1993. Prior to 1991, her record was unblemished. In 1991, she was posted to the Base Transportation Office at CFB Comox. Franke complained about her work environment at this posting. She claimed that the Unit Disciplinarian, MacNair, repeatedly enquired about her dating habits and on at least two occasions made sexually suggestive gestures towards her, such as rubbing his chest and running his tongue across his lips. As well, he showed her a postcard of a bare-chested woman and made inappropriate comments about the woman’s breasts. As well, Commanding Officer Couture referred to her as a "Biker Mama" and a "sexatary". Franke filed internal grievances about these incidents, and others, and was unsuccessful at all levels. She claimed that because of these grievances, the CAF treated her in a differential manner. These events culminated in the "shoe incident", in which Franke was reprimanded for having improper footwear, and then received a recorded warning for insubordination due to her reaction to the reprimand. When further grievances were unsuccessful, Franke filed a complaint with the Canadian Human Rights Commission. A Human Rights Tribunal ruled that her claim was unfounded and that the complaint had been made in retaliation for the disciplinary action for insubordination. The request for judicial review of the Tribunal’s decision was refused. Findings of fact and findings of credibility lie squarely within the jurisdiction of the Tribunal, and the Court will not interfere lightly in these areas. Franke has failed to demonstrate that the Tribunal’s findings were patently unreasonable or were made in bad faith. The Court concluded that the weight of the evidence supported the Tribunal’s findings that the impugned conduct was not, in fact, unwelcome or unwanted at the time it occurred, and was not severe or persistent enough to constitute sexual harassment. Finally, the evidence also supports the Tribunal’s conclusion that Franke was not subjected to differential treatment based on her sex. Canada (Attorney General) v. Public Service Alliance of Canada, of 1999 This is a case involving the judicial review of a Canadian Human Rights Tribunal decision which held that the Federal Government violated section 11 of the Canadian Human Rights Act by maintaining "differences in wages between male and female employees employed in the same establishment who are performing work of equal value". In upholding the Tribunal decision, Justice Evans noted that the policy motivating the enactment of the principle of equal pay for work of equal value is the elimination of systematic discrimination in the workplace which results from " the application over time of wage policies and practices that have tended to ignore, or to undervalue work typically performed by women". Justice Evans stated that in trying to understand the extent of such discrimination, "it is important to be able to view as comprehensively as possible the pay practices and policies of the employer as they affect the wages of men and women". In Justice Evans’ views, the methodology accepted by the Tribunal allowed for such a comprehensive comparison while "the methodology proposed by the Treasury Board would enable the Tribunal to examine only a small amount of the available data".
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