Civil rights — Federal or provincial legislation — Nature of proceedings under human rights legislation — Commissions or boards, jurisdiction — Complaints — Practice — Status to complain — Parties — Individuals and corporations, status or standing — Class actions, members of class — Class actions, certification, considerations — Labour law — Industrial relations — Collective agreement, enforcement — Jurisdiction or powers of arbitrator or board — Respecting human rights legislation.

   Motion by Canada Safeway to quash the Saskatchewan Human's Rights Commission's decision to initiate a pay equity related class action complaint and to prohibit it from pursuing any other similar complaints against it.  Motion by the United Food and Commercial Workers Local to restrain the Commission from proceeding with the complaint or for an order referring the matter to arbitration pursuant to a collective bargaining agreements.  A Safeway cashier filed a complaint with the Commission alleging that Safeway discriminated against her by establishing different employment wages, conditions, and opportunities for men and women contrary to section 16(1) of the Saskatchewan Human Rights Code.  The Commission certified a class complaint against Safeway with the class as past and present female Safeway cashiers.  On Safeway's motion, the Court of Appeal denied certification as the complaint should have been brought against the employees' unions as well as Safeway because the matters complained of were part of their collective bargaining.  The Commission then initiated a class action complaint against Safeway, United, and the employees' unions. Safeway and United challenged the Commission's authority to institute and inquire into a pay-equity related complaint.  They also alleged bias.

   HELD:  Motions dismissed.  There was no pay equity legislation in Saskatchewan, but there was a statutory regime dealing with complaints about discriminatory wage practices and specifying what involvement the Commission was to have. The Commission did not necessarily decide whether something fell within the purview of the Code; however, there should be a means for determining if an employer's pay practices offended gender discrimination prohibitions.  The class complaint, involving both Safeway and the employees' unions, was within Commission's jurisdiction to investigate.  A motion to quash was premature as the board of inquiry, should one be appointed following the investigation, could decide whether facts established by the evidence constituted gender discrimination disallowed by the Code.  Any aggrieved parties could then seek a remedy.  Thus, the motion to quash was premature.  When the Commission received the original complaint, it was obliged to conduct an inquiry.  When that faltered, the Commission initiated a class complaint pursuant to the Code and without improper motives.  The Commission could intervene as the essence of the complaint was discrimination on the basis of sex, which was a human rights violation and not a complaint about only a collective agreement dispute.

Statutes, Regulations and Rules Cited:

Counsel:

¶ 1      WIMMER J.:— Two motions, one by Canada Safeway Limited and one by United Food and Commercial Workers Local 1400, challenge the authority of the Saskatchewan Human Rights Commission to institute and inquire into a complaint concerning pay equity or, more specifically, a complaint alleging a failure by Canada Safeway to give certain categories of employees equal pay for work of equal value. The applicants also question the Commission's ability to deal fairly with the complaint. The Retail Wholesale Department Store Union joins the Commission in opposing the motions. They say the substance of the complaint is gender discrimination, not pay equity, and that the matter is not only within the Commission's mandate but is also one that the Commission is required by statute to investigate.

THE COMPLAINT AND ITS HISTORY

¶ 2      In December 1989, Barbara Hall, a cashier employed by Canada Safeway filed a complaint with the Saskatchewan Human Rights Commission under Part II of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, as am. (the "Code"). The complaint, initiated in Hall's name by her union, the Retail Wholesale Department Store Union, was as follows:

On September 22, 1992, the Commission, acting pursuant to s. 27(1) of the Code and ss. 12, 12.1, 12.2 and 12.3 of the regulations thereunder, passed a resolution certifying that the complaint shall proceed as a "class complaint", the class being:

It so advised Canada Safeway which, in turn, applied to the Court of Queen's Bench for an order denying the certification, all in accordance with the procedure laid down by the regulations. Among other things, Canada Safeway argued that the complaint should not go forward as a class complaint because the strict requirements of the regulations had not been met.

¶ 3      Ultimately, for the reasons set out by Cameron J.A. in a judgment dated August 14, 1997, and later reported as Canada Safeway Ltd. v. Saskatchewan (Human Rights Commission), [1998] 1 W.W.R. 155, the Court of Appeal denied the certification. The decision on appeal held that the complaint should have been brought against the unions representing the employees as well as the employer because the matters complained of were part of the collective bargaining agreements to which the employer and the unions were parties. Ms. Hall preferred not to put herself at odds with her own union and declined to broaden her complaint. Section 12(2)(d) of Sask. Reg. 216/79 requires that the interests of the class be fairly and adequately represented by the person or persons who initiate the complaint and, without including the unions, this could not be accomplished because all those who might be liable for any discrimination could not be brought to account.

¶ 4      As to s. 12(2)(d) of Sask. Reg. 216/79, Mr. Justice Cameron had this to say at p. 185 of the judgment:

No doubt inspired by those comments, the Commission, on December 19, 1997, initiated a class action complaint framed as follows:

The applicants responded with the present  motions, each taking a different tack.

THE MOTIONS

¶ 5      The Canada Safeway notice of  motion asks for an order pursuant to Queen's Bench Rule 664:

Its argument is that the Commission has no jurisdiction under the Code to initiate or inquire into complaints grounded on "pay equity" or "equal pay for work of equal value." It also says that the decision to initiate the complaint was biased or made in bad faith, discriminatory, made on the basis of improper or irrelevant considerations, and made in violation of the rules of procedural fairness.

¶ 6      The U.F.C.W.  notice of motion asks for relief in these terms:

It argues that even if the Commission has jurisdiction it should leave the matter to be resolved by those arbitration procedures set out in collective bargaining agreements concluded between Canada Safeway and the unions representing Safeway employees. This, it says, would have the collateral benefit of avoiding a possible apprehension of bias arising from the fact that any board of inquiry established under the provisions of the Code would be appointed at the instance of the Commission which has already initiated and investigated the complaint.

THE CANADA SAFEWAY MOTION

¶ 7      In regard to jurisdiction, the main point of controversy relates to the breadth of the Commission's authority under ss. 16(1) and 18 of the Code.

Canada Safeway says that because these provisions do not refer to pay equity they do not empower the Commission to initiate or inquire into pay equity complaints masked as discrimination on the basis of sex.

¶ 8      Although there is no pay equity legislation, as such, in Saskatchewan there is a statutory regime for dealing with complaints arising from certain discriminatory wage practices and it specifies what involvement the Commission will have. The following provisions of  The Labour Standards Act, R.S.S. 1978, c. L-1 (the "LSA"), have been in place since 1977:

The Code, enacted in 1979, included, in s. 16, this reference to The Labour Standards Act:

Subsection (6) was repealed with effect from July 17, 1989, by The Saskatchewan Human Rights Code Amendment Act, 1989, S.S.1989-90, c.23. Subsection (9) was added:

The LSA mandates only equal pay for similar work and, in the view of Canada Safeway, that forecloses any inquiry into a complaint founded upon unequal pay for work of equal value. To put it another way, the LSA, by implication, permits wage distinctions among employees who may be seen to be doing work of equal value because those kinds of disparities are not specifically prohibited. It must logically follow, so the argument goes, that the Commission is precluded from construing the practice as a violation of s. 16(1) of the Code.

¶ 9      To illustrate the argument, counsel for Canada Safeway points out that employees with physical or mental disabilities who work for non-profit organizations or institutions in programs that are educational, therapeutic or rehabilitative are not subject to the minimum wage provisions of the LSA. He contends that if one accepts the Commission's expansive interpretation of the Code, employers of disabled people, acting in compliance with the LSA, could nonetheless find themselves in violation of s. 16(1). That, of course, cannot be. The Commission acknowledges that what is permitted by the LSA cannot be seen as prohibited by the Code. How then, he asks, can unequal pay for work of equal value, impliedly permitted by the LSA, be regarded as offending the Code? The answer, it seems to me, is that unlawful discrimination might exist within classes of employees even though there is no discrimination against the class as such. There may, for example, be gender discrimination among disabled employees.

¶ 10        It is clear that for a long while after the Code was first brought into law, wage disparities between men and women were not thought of as discriminatory practices in the context of human rights violations. That is probably because initial understandings of discrimination included notions of bad motive or intentional malfeance. See: Tarnopolsky and Petney, Discrimination and the Law, (looseleaf; (1998 Rel. 5) December 1998 (Scarborough: Carswell, 1994)) pp.4-29 to 4-50. Over time, thinking broadened and, in 1985, the Supreme Court of Canada in Ontario Human Rights Commission and Theresa O'Malley (Vincent) v. Simpson-Sears Limited et al., [1985] 2 S.C.R. 536, made it clear that intent to discriminate is not a factor in the construction and application of human rights legislation. If the impugned conduct has a discriminatory effect, that is discrimination however benign the motive of the offender.

¶ 11      Thus, the Commission's position is that s. 16(1) of the Code prohibits gender discrimination with respect to any term or condition of employment even if that result is unintentional; that payment of wages is a condition of employment; and that the failure to pay female employees the equivalent of that paid male employees for work of equal value constitutes gender discrimination. Counsel for the Commission refers to O'Malley to make the point that the special nature and purpose of human rights legislation require that it not be interpreted narrowly, but generously, and in a way which will recognize and advance its purposes, including the elimination of discrimination on prohibited grounds. The Commission, supported by R.W.D.S.U, says the object of its proposed inquiry is to discover if the facts alleged in the complaint do amount to discrimination on the basis of sex within the meaning of s. 16(1) and that the provisions of the Code should be construed in a way that allows the inquiry to proceed.

¶ 12      Nishimura v. Ontario ( Human Rights Commission) (1989), 70 O.R. (2d) 347, is a judgment from the Divisional Court of Ontario holding that unequal pay for work of equal value can constitute sex discrimination within the meaning of what was then s. 4(1) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. The section is not dissimilar to s. 16(1) of the Saskatchewan Code.

Certainly, the aim and effect of the two provisions are alike and the reasons for judgment generally fit the case at hand. This quote is from the headnote to the report:

I do not necessarily agree that it is for the Commission itself to decide, as a matter of law, whether this or that falls within the purview of the Code. Nevertheless, I do find the reasons for judgment persuasive insofar as they approve a means for determining if a particular employer's pay practices offend gender discrimination prohibitions.

¶ 13      Counsel for Canada Safeway dismisses Nishimura as "wrongly decided" but I am not so sure. In any event, it seems to me implicit in the Court of Appeal disposition of Canada Safeway's first application that the class complaint, embracing as it does both the employer and the unions representing the employees, is within the scope of the Commission's authority to investigate. It is for a board of inquiry, should one be appointed following the investigation, to decide whether facts established by the evidence constitute the kind of gender discrimination disallowed by the Code. Should the board commit some reviewable error in the process, then is the time for aggrieved parties to seek a remedy.

¶ 14      On this aspect of the application I am in general agreement with the respondents. The application is premature.

¶ 15      Canada Safeway complains of bias on the part of the Commission as evidenced by the decision to single it out for investigation rather than other food retailers whose wage differential between cashiers and food clerks is the same or even greater. On this account, it also says that the actions of the Commission have been discriminatory and unfair, and that the decision to launch the class complaint was based on considerations not contemplated by the Code. For all of those reasons, it argues, the Commission should be precluded from continuing. However, I do not see the course of events in quite the same way.

¶ 16      When the Commission received the original Hall complaint it was bound by s. 28 of the Code to conduct an inquiry. When that faltered on procedural grounds, and perhaps encouraged by the Court of Appeal judgment, it did what it is empowered to do under s. 27(3). That is, initiate a class complaint. That may seem unfair or discriminatory from Canada Safeway's perspective but, at least in my view, it was not beyond the Commission's dominion as established by the Code. I am not persuaded by anything in the course of events as they unfolded that the Commission has been driven by any improper motive.

¶ 17      In the result, the Canada Safeway motion will stand dismissed with costs.

THE U.F.C.W. MOTION

¶ 18      While conceding that the Commission may have jurisdiction to entertain the complaint, counsel for the U.F.C.W. makes the point that terms or conditions of employment are matters covered by collective bargaining agreements between Canada Safeway and the unions. He contends the complaint would be best adjudicated according to the grievance procedure contained in the agreements because mandatory arbitration, in his words, provides the parties with an informal, expeditious and cost effective method of resolving their disputes. In support of this contention he relies upon three judgments of this court, each holding that as between the arbitration process provided for in collective agreements and statutory tribunals, deference should be given the former. Those three judgments are: Dominion Bridge Inc. v. Routledge et al. (1997), 161 Sask. R. 190 (Q.B).; Cadillac Fairview Corp. v. Human Rights Commission (Sask.) et al (1998), 162 Sask. R. 290 (Q.B.); and  Prince Albert District Health Board v. Occupational Health and Safety (Sask.) (1998), 164 Sask. R. 275 (Q.B.). These judgments hold that arbitrators acting pursuant to the provisions of collective bargaining agreements and s. 25(1) of The Trade Union Act have exclusive jurisdiction in matters of complaint involving employers and employees.

¶ 19      On April 15, 1999, the Court of Appeal allowed an appeal in the Cadillac Fairview Corp. case [Sask. C.A. No. 2928 (as yet unreported)]. Vancise J.A. defined the issue at para. 9 of the reasons for judgment:

As to human rights legislation in general, and the Code in particular he said this at paras. 16 and 17:

In the end, he ruled that where "... the essential nature of the dispute is a human rights violation and not one which only involves a dispute by the parties concerning the application, violation or interpretation of the collective agreement" (para. 33) the Commission has authority to intervene.

¶ 20      In present case, the essence of the complaint is discrimination on the basis of sex. It is not a complaint about a dispute involving only the application, violation or interpretation of a collective agreement. It follows that the Commission cannot be prevented from pursuing its investigation. Accordingly, the United Food and Commercial Workers, Local 1400 motion is also dismissed with costs.

WIMMER J.

QL Update:  990512
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