Judgments

[1996] 3 F.C. 182

T-2077-93

The Government of the Northwest Territories (Applicant)

v.

Public Service Alliance of Canada (Respondent)

and

Canadian Human Rights Commission (Intervenor)

Indexed as: Northwest Territories v. Public Service Alliance of Canada (T.D.)

Trial Division, Simpson J.—Edmonton, February 6; Ottawa May 27, 1996.

Human rights — Judicial review of CHRC’s decision to refer PSAC’s complaint alleging discrimination against female employees of G.N.W.T.’s public service in respect of job classification, pay equity matters, to conciliator — CHRA, s. 63 providing complaint about act occurring in NWT not dealt with unless act could be subject of complaint had it occurred in province — G.N.W.T. federal territory, having only those powers granted by Parliament under Northwest Territories Act — Powers subject to any other Act of Parliament — S. 66 exempting G.N.W.T. from application of Act on day to be fixed by proclamation — No such proclamation — G.N.W.T. not having enacted human rights legislation — Parliament not intending Act to operate so as to leave G.N.W.T. employees without benefit of human rights legislation — S. 63 not ousting Commission’s jurisdiction — Reasonable apprehension of bias as investigator, whose recommendations Commission adopted, chose to be full-fledged member of complainant union.

Administrative law — Judicial review — Certiorari — CHRC adopting recommendations in investigation report, referring PSAC’s complaint alleging discrimination against female employees of G.N.W.T.’s public service in respect of job classification, pay equity matters, to conciliator — Investigator choosing to be PSAC member — Informed person might reasonably wonder whether investigator having pre-determined pro-union view of pay equity, national issue being pushed aggressively by PSAC — Representation by union, payment of mandatory dues not raising same concerns — Investigation report, therefore Commission’s decision, tainted.

This was an application for judicial review of the Canadian Human Rights Commission’s decision to refer PSAC’s complaint to a conciliator. The complaint named the Minister of Personnel for the Government of the Northwest Territories (G.N.W.T.) as the employer and alleged that in that capacity he had discriminated against female public service workers in violation of Canadian Human Rights Act, sections 7, 10 and 11 in respect of job classification and pay equity matters. The G.N.W.T. has only those powers granted to it by Parliament pursuant to the Northwest Territories Act, and those powers are subject to any other Act of the Parliament of Canada. In practice, in respect of its public service, the G.N.W.T. enjoys the powers exercised by the provinces but unlike the provinces, the G.N.W.T. has no entrenched constitutional right to assert those powers. The G.N.W.T.’s public service employees were represented by the Union of Northern Workers (UNW), a component of PSAC, which also held the bargaining rights for many federal government public servants. Shortly after the PSAC complaint was filed, the G.N.W.T. and UNW established the Joint Equal Pay Study (the JEP Study) to obtain the information needed to evaluate the complaint. In 1989 James Sadler, a Commission employee, was designated as an investigator of the complaint. Sadler was obliged to pay union dues to PSAC because he was a member of a collective bargaining unit represented by PSAC, but he was not required to become a union member and he chose not to join the union. After the release of the JEP Report, Lorraine Dallas was designated as a second investigator. She was a PSAC member. While the JEP Study was being prepared, Sadler undertook an analysis of the data therefrom, and concluded that there was a wage gap. To assist settlement of the equal pay portion of the complaint, Sadler sent his analysis to the UNW. In 1993, the Commission adopted the investigators’ recommendations in their report and decided to appoint a conciliator to attempt to settle the PSAC complaint, and to defer a decision on the section 10 aspect of the complaint.

Canadian Human Rights Act, section 63 provides that a complaint relating to an act that occurred in the Northwest Territories may not be dealt with unless it could have been the subject of a complaint had it occurred in a province. The G.N.W.T. submitted that a classification and pay issues complaint was a provincial matter and therefore not covered by the CHRA.

The G.N.W.T. also submitted that the investigators’ status and conduct created a reasonable apprehension of bias because the investigators were represented for collective bargaining purposes by PSAC, the complainant in the matter under investigation. It also submitted that Sadler’s early and unjustified release of the wage gap analysis during or pending settlement negotiations lead to a reasonable apprehension that he was biased in favour of the employees.

The issues were: (1) whether CHRA, section 63 ousted the Commission’s jurisdiction; and (2) whether the CHRC’s decision should be set aside because of a reasonable apprehension of bias on the part of the investigators.

Held, the application should be allowed.

(1) The Commission had jurisdiction to deal with the PSAC complaint. Parliament did not intend section 63 to exempt the G.N.W.T. from the operation of the CHRA in respect of its public service employees. Section 66 exempts the G.N.W.T. from the application of the Act on a day to be fixed by proclamation, but unlike the Yukon Territory, the G.N.W.T. has not enacted human rights legislation and there has been no proclamation exempting the G.N.W.T. from the operation of the CHRA. The G.N.W.T. is not a province, but a federal territory and the CHRA has always bound the Crown. The G.N.W.T.’s legal status must not be ignored. Furthermore, the G.N.W.T. has not passed human rights legislation and Parliament did not intend the CHRA to operate so as to leave G.N.W.T. employees without the benefit of such legislation.

(2) The test for a reasonable apprehension of bias is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude? Pay equity is not relevant only in the NWT. It is an issue of considerable interest nationwide, and PSAC is an aggressive proponent of pay equity. An informed person might reasonably wonder whether Dallas, who had chosen to become a PSAC member, might have a pre-determined pro-union view of pay equity matters. An informed person would not have the same concerns about Sadler because he did not choose to support PSAC by becoming a member. That he was represented by PSAC and paid mandatory dues did not create a reasonable apprehension of bias. Although Dallas’ involvement in the investigation was minimal, both investigators signed the investigation report. The Commission’s decision under section 46 must be based on a bias-free investigation report. The investigation report was tainted by the apprehension of bias on the part of Dallas, and therefore the Commission’s decision which adopted the investigators’ recommendations was also tainted.

While it was not Sadler’s place to release the wage gap analysis, except in the context of the investigation report, the lack of data was confounding all parties’ efforts to deal with the PSAC complaint. Sadler’s provision of these figures was not a basis for a reasonable apprehension of bias. He was merely distributing material he thought everyone needed at a time when there was no dispute about the quality of the JEP Study.

That the investigators did not inquire whether any factors justifying the difference in wages existed pursuant to subsection 11(4) was not a basis for a reasonable apprehension of bias. If the G.N.W.T. did not raise such matters, it was reasonable for the investigators to assume that none existed.

The G.N.W.T.’s submissions on bias were not premature. A reasonable apprehension of bias should be dealt with as soon as possible rather than letting costly proceedings go forward which may later be set aside.

There is no statutory exemption from the possibility that an apprehension of bias will arise because investigators are employed under the Public Service Staff Relations Act, which gives every employee the right to union representation. The CHRA permits the hiring of investigators under contract.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10, 11, 32, 43(1), 47, 63.

Fair Practices Act, R.S.N.W.T. 1988, c. F-2.

Human Rights Act, S.Y. 1987, c. 3.

Northwest Territories Act, R.S.C, 1985, c. N-27.

Northwest Territories Public Service Association Ordinance, R.O. 1974, c. N-2.

Public Service Act, R.S.N.W.T. 1988, c. P-16, ss. 12, 13.

Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 6.

Union of Northern Workers Act, R.S.N.W.T. 1988, c. U-1.

CASES JUDICIALLY CONSIDERED

APPLIED:

Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241.

DISTINGUISHED:

Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al. (1993), 71 F.T.R. 214 (F.C.T.D.).

CONSIDERED:

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115.

REFERRED TO:

Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729; (1977), 76 D.L.R. (3d) 85; 77 CLLC 14,073; 14 N.R. 72; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; (1989), 57 D.L.R. (4th) 458; [1989] 3 W.W.R. 456; 93 N.R. 1.

AUTHORS CITED

Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, Issue No. 115 (December 21, 1982).

Canada. Special Representative for Constitutional Development in the Northwest Territories. Constitutional Development in the Northwest Territories: Report of the Special Representative. Hull (Quebec): Supply and Services Canada, 1980 (Special Representative: C. M. Drury).

APPLICATION for judicial review of the CHRC’s decision to refer PSAC’s job classification and pay equity complaint to a conciliator. Application allowed on the ground that there was a reasonable apprehension of bias on the part of the Commission’s investigator.

COUNSEL:

Russell G. Juriansz and Robert E. Kwinter for applicant.

Andrew J. Raven for respondent.

René Duval for intervenor.

SOLICITORS:

Russell G. Juriansz, Toronto, and Blake Cassels & Graydon, Toronto, for applicant.

Raven, Jewitt & Allen, Ottawa, for respondent.

Canadian Human Rights Commission, Legal Department, Ottawa, for intervenor.

The following are the reasons for order rendered in English by

Simpson J.: This application for judicial review is brought by the Government of the Northwest Territories (the G.N.W.T.). It seeks review of a decision made by the Canadian Human Rights Commission (the Commission) dated June 10, 1993 (the decision). In its decision, the Commission considered a complaint filed by the Public Service Alliance of Canada (PSAC) against the G.N.W.T. (the PSAC complaint) and decided to appoint a conciliator to deal with two aspects of the PSAC complaint. It also decided to defer consideration of a third aspect of the PSAC complaint.

THE PARTIES

The G.N.W.T.—The Applicant

The PSAC complaint names the Minister of Personnel for the G.N.W.T. as the employer and alleges that he breached the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the CHRA) in respect of job classification and pay equity matters as they relate to the Territorial public service. The G.N.W.T. is the largest single employer in the Northwest Territories (the N.W.T.). It employs approximately 5,500 employees who, in 1992, represented approximately 30% of the total Territorial work force.

The G.N.W.T. filed a comprehensive affidavit which was sworn by John Havelock Parker on August 17, 1993 (the Parker affidavit). Mr. Parker traced the history of the G.N.W.T. and testified about its relationship with its public service. His credentials for this task are impeccable and include his years of service as Deputy Commissioner and Commissioner of the N.W.T. As all parties accepted his evidence, I propose to quote relevant passages.

Paragraphs 5 and 6 of the Parker affidavit provide a summary of his evidence in the following terms:

5.   As more fully explained herein, the course of history in the NWT demonstrates a gradual transition from the highly centralized, quasi-colonial system of government which characterized the period from 1905 to at least the 1950’s, to the largely independent, responsible Territorial government, based on the provincial model, which has existed since the mid-1980’s. Moreover, the creation and development of a Territorial public service, over which the G.N.W.T. exercises legislative and administrative control and for which it is politically and fiscally accountable, was, and is, fundamental to the establishment of responsible government in the NWT.

6.   The historical record amply demonstrates a steady progression in the relationship between the G.N.W.T. and the Territorial public service which, by approximately 1986, had culminated in the devolution to the G.N.W.T. of the same rights, duties and powers in respect of its public service as exist between provincial governments and their public services elsewhere in Canada.

Mr. Parker describes the public service as follows:

31. The first Public Service Ordinance had actually been passed by the NWT Council in 1965. At that time, there was only a small territorial public service principally engaged in the territorial liquor management system. In 1965-1966, the G.N.W.T. had an operating budget of less than $10 million. Within a decade, the public service had grown to almost 3,000 employees and the 1976-1977 operating budget was approximately $160 million. In 1990, the NWT public service employed approximately 5,800 and the GWNT’s operating budget was approximately $900 million.

32. By the 1980’s, the G.N.W.T. was responsible for providing and administering most of the programs and services typically provided by a provincial government. In 1969, the territorial Public Service Act was amended to provide for collective bargaining and thereafter labour relations, at least insofar as the public service was concerned, had become a matter for the G.N.W.T.. Territorial public service employees continue to be governed by the federal Public Service Superannuation Act, but retention of federal administration in this area is reasonable in that many territorial public service employees are transferees from the federal public service, and their accrued pensions were vested and guaranteed under the federal system.

33. Until 1986, the Public Service Act expressly gave the Commissioner responsibility for the management and direction of the territorial public service. The Commissioner was effectively the “employer” of the public service with ultimate responsibility for determining the terms of employment, rate of pay, the bases for hiring and dismissal and other matters in relation to public service employees. As a result of landmark amendments to the legislation in 1986, however, the Minister of Personnel, an elected member of the NWT Council, assumed all of the Commissioner’s responsibilities in relation to the territorial public service. From that time forward, administration of the public service has been the direct responsibility of the G.N.W.T..

I should note for completeness that it is sections 12 and 13 of the Public Service Act, R.S.N.W.T. 1988, c. P-16, which give the G.N.W.T.’s Minister of Personnel specific responsibility for the pay and classification matters which are the subject of the PSAC complaint. This legislation received Royal Assent on June 16, 1986.

Mr. Parker’s affidavit concludes in the following terms:

34. The cumulative effect of the many changes which have taken place in the government of the NWT, particularly since the release of the Carrothers Commission Report in 1966, has been to create a representative, responsible, resident territorial government which has the same powers and responsibilities to those it governs as a provincial government. Those differences which do remain between the NWT and the provinces have little to with the manner of government or the relative levels of local government autonomy, which they share in common. The remaining differences have much more to do with the nature of land ownership and control of natural resources; the issues raised by the presence of a native majority in the NWT; and the nature and magnitude of the financial arrangements between the federal and territorial governments.

…

36. The relationship between the G.N.W.T. and its public service sector is akin to the relationship that exists between provincial governments and their public services. As in the provinces, administration of the public service is a matter of local concern. The G.N.W.T., as do the provincial legislatures, decides what services are required to meet the needs of the public; decides how best to mobilize public service resources to meet those needs; determines how the services are to be paid for; establishes labour standards and terms of employment which govern public service employees; and negotiates collective agreements with employee associations, all without any interference or input from the federal government.

Despite the trend towards self-government described in the Parker affidavit, all parties acknowledge that the N.W.T. is not a province and remains subject to the “all-encompassing legislative authority of the Parliament of Canada”.[1] The G.N.W.T. has only those powers granted to it by Parliament pursuant to the Northwest Territories Act, R.S.C., 1985, c. N-27 and those powers are all subject to any other Act of the Parliament of Canada. In practice, in respect of its public service, the G.N.W.T. enjoys the powers exercised by the provinces but, unlike the provinces, the G.N.W.T. has no entrenched constitutional right to assert those powers.

PSAC—The Respondent

The G.N.W.T.’s public service employees are represented by the Union of Northern Workers (the UNW). The UNW was originally established pursuant to the Northwest Territories Public Service Association Ordinance, R.O. 1974, c. N-2 and was continued under the Union of Northern Workers Act, R.S.N.W.T. 1988, c. U-1. In the N.W.T., the UNW is the sole bargaining agent for public service employees. The UNW is described as a “component” of PSAC and there was no issue in this case about PSAC’s status to file the PSAC complaint. PSAC holds the bargaining rights for a large number of federal government public servants who are employed under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35. However, in Ontario and Manitoba, PSAC also represents employees who are not employed by the federal government.

The Commission—The Intervenor

The Commission is a multi-disciplinary body. It plays a policy role, undertakes investigations, makes administrative decisions and plays a quasi-adjudicative role. In its handling of the PSAC complaint to date, the Commission has been primarily engaged in its investigative function.

THE PSAC COMPLAINT

The PSAC complaint, which was filed on March 28, 1989, alleges that the G.N.W.T.’s Minister of Personnel, in his capacity as the employer of members of the N.W.T. public service, has discriminated against female public service workers in matters of job classification and pay, in violation of sections 7, 10 and 11 of the CHRA. The PSAC complaint seeks relief in the form of the elimination of all discriminatory wage rates, implementation of a gender neutral job evaluation system and retroactive compensation with interest to March, 1988.

THE JEP STUDY REPORT

Shortly after the PSAC complaint was filed, it became clear to both the G.N.W.T. and the UNW that the hard data needed to assess the merits of the PSAC complaint did not exist. Accordingly, the G.N.W.T. and the UNW established a joint project to obtain the information needed to evaluate the PSAC complaint. The project was called the Joint Equal Pay Study (the JEP Study) and was described in a letter of understanding signed in April, 1989. The Final Report of the JEP Study (the JEP Report) was signed by representatives of both participants in June of 1992.

The Commission appears to have played a monitoring and advisory role in the planning stages of the JEP Study to ensure that it proceeded in accordance with the Commission’s requirements. This was of importance to the Commission and to the JEP Study participants because everyone wanted the JEP Study results to form part of the Commission’s investigation and to serve as a reliable basis for resolving the PSAC complaint.

The JEP Study was a formidable undertaking. The JEP Report described the objectives of the JEP Study and the magnitude of the task in the following terms:

The objective of the Joint Equal Pay Study is to provide the parties with accurate and complete documentation and job evaluation data to determine, upon analysis, whether or not there is equal pay for work of equal value in accordance with Section 11 of the Canadian Human Rights Act and if there are inequities, where they exist and to what extent.

…

The logistics of collecting accurate and current job data from employees in remote northern communities who don’t read, write, or speak English, and who probably do not see their job description in any language, and who seldom see their immediate supervisor, represented an organization nightmare.

…

The Joint Equal Pay Study was a major undertaking involving the entire Territorial Public Service in every community throughout the Northwest Territories. The project covered a time span of two years from the time that the Committee members were appointed in August, 1989 to the submission of the Study results to the Government of the Northwest Territories and the Union of Northern Workers in July, 1991.

The JEP Study was managed by a Committee of three (the Committee), which included one UNW appointee, a G.N.W.T. appointee and a chairperson selected by the two appointees. The Committee hired Norman D. Willis as a consultant, agreed on a suitable questionnaire and on an appropriate data gathering methodology. On this topic, the JEP Report made the following comments (at page 9):

One of the most challenging aspects of the Study was to develop a viable data gathering methodology which would reach all 5000 employees in the project. They are located in 64 communities throughout a vast geographical area, most of which are accessible by air only. Forty percent (40%) of the employees are situated in departmental head offices located in Yellowknife. The second largest group of employees are located in five different regional centres with the number of employees ranging from 340 in Iqaluit, to 125 in Cambridge Bay. The remaining employees are located in communities throughout the Territories ranging from one or two hundred in Fort Simpson and Hay River, to one or two employees in the more remote communities such as Colville Lake or Rae Lakes.

The Committee also agreed on an acceptable number of jobs to evaluate. The Territorial statistician recommended a sample of 700 jobs and the JEP Report notes at page 11 that the Committee decided that this figure was “roughly” acceptable. In the end, 654 jobs were studied. Staff training, communication with employees, evaluation of the jobs and related checks for reliability were all enormous tasks. In fact, the reliability checks posed a problem. The evaluations by different committees were compared in two tests. The first test suffered a procedural flaw and was declared invalid. The second test produced an unacceptable variance, 3 times out of 10, and the JEP Report noted at page 17 that “when the same rate of variation is applied to the entire study of 654 jobs, the reliability of the Study results appears to be in jeopardy”. However, having raised this concern, the JEP Report discounted it on the basis that further work on evaluation techniques would have reduced the variance to an acceptable level by the time the JEP Study was concluded. Indeed, in the text of the JEP Report, it is clear that the Committee had no concern at the end of the JEP Study. In its conclusion, the JEP Report stated (at page 21):

… given the accuracy of the evaluation data and the completeness of the job documentation, the data produced by the Joint Equal Pay Study will enable the Parties to resolve the issue of equal pay for work of equal value.

It is also interesting to note that the rate of return for the questionnaires was 64% and the JEP Report did not express any concern about this return rate. In fact, the rate of return from the regions was described as “reasonably high” at page 7 of the JEP Report and, at page 11, reference was made to a “successful response rate”. Finally, the JEP Report did not express any concern about the quality of the job data collected and stated, again at page 11, that it was of “high quality”.

The G.N.W.T. and UNW Committee members both signed the JEP Report without reservation on June 26, 1992.

THE INVESTIGATORS

On May 25, 1989, the Commission designated James Sadler (Sadler) as an investigator for the PSAC complaint under subsection 43(1) of the CHRA. Sadler was a Commission employee based in Ottawa. He had no personal connection with the G.N.W.T. or the UNW. Sadler was obliged to pay union dues to PSAC because he was a member of a collective bargaining unit represented by PSAC. However, Sadler was not required to become a union member and he chose not to join PSAC.

At a later date, which on the evidence is either September, 1992 or February, 1993, but in either case, after the release of the JEP Report in June, 1992, Lorraine Dallas (Dallas) was designated by the Commission as a second investigator. Dallas had chosen to be a full-fledged voting member of PSAC, but she had no personal connection of any kind to the G.N.W.T. or the UNW. Sadler and Dallas will be referred to together as the “investigators”.

THE WAGE GAP ANALYSIS AND SETTLEMENT DISCUSSIONS

While the JEP Report was being prepared, Sadler, in his capacity as a Commission investigator, undertook an analysis of the data from the JEP Study in an attempt to determine whether it showed that a wage gap actually existed. This analysis is known as the Wage Gap Analysis and it did disclose a gap. For the purpose of assisting the parties in their efforts to arrive at a settlement of the equal pay portion of the PSAC complaint, Sadler sent his Wage Gap Analysis to the UNW with a covering letter dated June 17, 1992.

Three months later, by letter dated October 1, 1992, the G.N.W.T. wrote to the Commission and outlined its concerns with Sadler’s Wage Gap Analysis. One concern related to the validity of the data from the JEP Study. It appears from the record before me that, before this date, the G.N.W.T. had never criticized the quality of the data used to reach the JEP Study results.

The G.N.W.T.’s other concerns related to the methodology used by Sadler in his preparation of the Wage Gap Analysis. Generally, the G.N.W.T. described Sadler’s approach as “simplistic” and “flawed” and expressed concern that the results of the Wage Gap Analysis had created unrealistic expectations on the part of employees because local newspapers were reporting that the G.N.W.T. was facing a sixty million dollar settlement.

The G.N.W.T.’s letter of October 1, 1992 ended by informing the Commission that discussions were ongoing with a view to reaching a negotiated settlement of the PSAC complaint. This statement responded to a comment Sadler had made in his earlier letter of June 17, 1992 indicating the Commission’s preference for a negotiated settlement. Settlement negotiations were undertaken on a “without prejudice” basis in the period from October of 1992 to February of 1993. However, a settlement was not achieved.

THE INVESTIGATION REPORT

On April 23, 1993, the investigators completed and signed a forty-five paragraph Investigation Report (the Investigation Report) for the Commission. They signed the Investigation Report as co-investigators. The Investigation Report appended three annexes: the PSAC complaint was Annex A, a letter sent by the Commission to the JEP Study co-chairs on September 7, 1990 about the Commission’s role in the study was Annex B, and Sadler’s Wage Gap Analysis was Annex C.

THE COMMISSION’S DECISION

On June 8, 1993, the Commission decided to appoint a conciliator pursuant to section 47 of the CHRA to attempt to bring about a settlement of the PSAC complaint under sections 7 and 11 of the CHRA. The Commission also decided to defer a decision on the section 10 aspect of the PSAC complaint for further consideration in due course. The decision adopted the recommendations made by the investigators in their Investigation Report. There is no dispute that, when it made its decision, the Commission had before it the Investigation Report, a chronology of the events which had transpired since the complaint was filed and submissions on the Investigation Report filed by PSAC and by the G.N.W.T. Both submissions were dated June 2, 1993.

The PSAC submissions were substantive in the sense that they took issue with matters raised in the Investigation Report and asked for corrections and clarifications. They also questioned the appropriateness of the methodology used to calculate the value of female jobs. In contrast, the G.N.W.T. did not provide a substantive critique of the Investigation Report. Its submission simply notified the Commission that the G.N.W.T. would commence proceedings in Federal Court in order to raise issues of bias and jurisdiction.

THE ISSUES

Against the background, the G.N.W.T. raises the following issues:

1. Is the Commission without jurisdiction to deal with the PSAC complaint by reason of section 63 of the CHRA?

2. Should the CHRC’s decision be set aside because of a reasonable apprehension of bias on the part of the investigators?

1.         JURISDICTION

Section 63 of the CHRA (the section) has not been judicially considered. It provides that:

63. Where a complaint under this Part relates to an act or omission that occurred in the Yukon Territory or the Northwest Territories, it may not be dealt with under this Part unless the act or omission could be the subject of a complaint under this Part had it occurred in a province.

The issue is whether the section applies to oust the jurisdiction of the Commission when a complaint under the CHRA is brought against the G.N.W.T. in relation to its public service.

The G.N.W.T.’s Position

The G.N.W.T. submits that I should approach the section as one which is to be applied on a case-by-case basis. Further, it suggests that the focus of the section is the act or omission described in the complaint and not the constitutional nature of the entity which is the object of the complaint.

With these guiding principles, the G.N.W.T. says that, in this case, the section should be read as if it asks whether a complaint, which is concerned with classification and pay issues made against an elected representative of a responsible government which controls all aspects of its public service, would be a federal or provincial matter if it were made in a province? The G.N.W.T. then submits that the act or omission described in such a complaint would clearly be a provincial matter and, hence, would be outside the jurisdiction of the CHRA in the N.W.T.

There is no question that, in a province, a complaint regarding provincial public servants’ classification and pay would not be governed by the CHRA. The G.N.W.T. says that, since it has de facto control over its public service, it makes no sense that the Commission, which the G.N.W.T.’s counsel describes as “an outside southern agency” should interfere with the administration of the N.W.T.’s public service. This is particularly so, it is argued, when control over the public service is an incident of responsible government and when the development of responsible government in the N.W.T. is a federal government objective.

As noted above, the G.N.W.T. would frame the question posed for the application of the section so that no reference is made to the fact that the G.N.W.T. is, from a constitutional perspective, a federal entity. The G.N.W.T. observes that if, in applying the section, its constitutional status were to be a factor, the question would be whether the complaint about an act or omission on the part of a federal entity would be a federal or provincial matter in a province. The answer to a question so framed would always be that it would be a federal matter. Accordingly, the section would have no meaning because it would never oust the Commission’s jurisdiction. The G.N.W.T. therefore says that its constitutional status cannot be relevant in the application of the section because, if that approach were taken, the section would have no meaning.

The Position of PSAC and the Commission

On the other hand, PSAC and the Commission submit that, if I accept the G.N.W.T.’s approach, and the G.N.W.T.’s constitutional status is ignored so that it is treated as a province in the application of the section, the CHRA will never apply to complaints against the G.N.W.T. relating to its public service. This, according to PSAC and the Commission is clearly contrary to the intention of Parliament. PSAC and the Commission also submit that it is wholly unrealistic to pretend that the N.W.T. has provincial status and that such a fiction should not underpin an exercise in statutory interpretation.

Analysis

If the N.W.T.’s constitutional status is considered, the section may well have no meaning at all as the G.N.W.T. submits. For example, if a motel in the N.W.T. refuses a guest lodging for racial reasons, section 63 would suggest that the CHRA would not apply to a complaint in the N.W.T. because, in a province, the operation of a motel would not be a federal matter. However, in the N.W.T. motels are federal from a constitutional perspective and, if this is taken into account, a province would never have jurisdiction over a federal motel and the section would allow the application of the CHRA in the N.W.T. Similarly, complaints about the application of city by-laws would normally be provincial matters, but in the N.W.T. city by-laws are under federal jurisdiction. If this were recognized, the section would operate to allow the CHRA to apply to by-law complaints in the N.W.T.

At this point, absent other considerations, I would ordinarily accept the G.N.W.T.’s view of the section because it is the view which allows the section some scope for operation. The difficulty, however, is that for two reasons I am not persuaded that Parliament intended the section to function so as to grant the G.N.W.T. what amounts to a blanket exemption from the CHRA in respect of its public service employees.

I say this firstly because section 66 was added to the CHRA in 1983 [then section 63, as am. by S.C. 1980-81-82-83, c. 143, s. 24]. It provides as follows:

66. (1) This Act is binding on Her Majesty in right of Canada, except in matters respecting the Government of the Yukon Territory or the Northwest Territories.

(2) The exception referred to in subsection (1) shall come into operation in respect of the Government of the Yukon Territory on a day to be fixed by proclamation.

(3) The exception referred to in subsection (1) shall come into operation in respect of the Government of the Northwest Territories on a day to be fixed by proclamation.

On December 10, 1987, the Yukon Territorial government passed the Human Rights Act, S.Y. 1987, c. 3. Three weeks later, on January 1, 1988, the federal government issued a proclamation which exempts the Government of the Yukon Territory from the operation of the CHRA.

In contrast, the G.N.W.T. has not passed human rights legislation and there has been no proclamation exempting the G.N.W.T. from the operation of the CHRA. I should note in passing that the G.N.W.T. does have the Fair Practices Act, R.S.N.W.T. 1988, c. F-2, but it was not suggested in argument before me that this Act is a substitute for human rights legislation. Indeed, all parties indicated that the Fair Practices Act is not relevant to my decision in this case.

At the time Parliament considered the enactment of section 66, it was considered by the Standing Committee on Justice and Legal Affairs.[2] At that time, the Honourable Mark MacGuigan, Minister of Justice and Attorney General of Canada commented in part as follows: “We do not really want to proclaim this proposed section until there are human rights codes in place in the territories”.

Secondly, although the section has been in the CHRA since it was first passed in 1978, there has always been some confusion about whether the CHRA applied to G.N.W.T. employees. In January of 1980, C. M. Drury released a report entitled Constitutional Development in the Northwest Territories: Report of the Special Representative. It was prepared for the Prime Minister of Canada, the Right Honourable C. J. Clark. In his report at pages 73 and 92, Mr. Drury noted the confusion and recommended an amendment to the CHRA. His recommendation was that the G.N.W.T. be given responsibility for the protection of the human rights of G.N.W.T. employees. His recommendation was followed in part with the enactment of the present version of section 66 in 1983. It, as we have seen, provided for the G.N.W.T.’s exemption from the CHRA, but only at an unspecified future date which has yet to arrive.

In conclusion on this issue, I am not prepared to interpret the section in a manner which has the effect of exempting the G.N.W.T. from the operation of the CHRA in respect of its public service employees. Even though, in practice, the G.N.W.T. manages its public service in all respects as if it were a province, the fact remains that it is not a province. It is a federal territory and the CHRA has always bound the Crown. I am not willing to accept an approach to statutory interpretation which ignores the G.N.W.T.’s legal status. In addition, the G.N.W.T. has not passed a human rights act and I am satisfied that Parliament did not intend the CHRA to operate in a fashion that leaves G.N.W.T. employees without the benefit of human rights legislation.

In all of the circumstances, I have concluded that the Commission has jurisdiction to deal with the PSAC complaint.

2.         BIAS

The G.N.W.T. alleges that the investigators’ status and conduct do not disclose actual bias, but rather create a reasonable apprehension of bias. It further alleges that this perceived bias is aggravated by the conduct of the Commission. These submissions are based on the following specific complaints (collectively the “complaints”):

(a) The fact that the investigators are represented in their collective bargaining by PSAC which is the complainant in the matter under investigation;

(b) The fact that the Commission did not respond in a forthright and complete manner to the G.N.W.T. when it first raised concerns about bias;

(c) The fact that the G.N.W.T. was never given the supporting documentation which accompanied the PSAC complaint;

(d) The fact that the Commission failed to play the role in the JEP Study which it had undertaken to play;

(e) The fact that Sadler used the JEP Study results to prepare his Wage Gap Analysis;

(f) The fact that Sadler overreached his fact finding mandate under section 43 of the CHRA by submitting his Wage Gap Analysis to PSAC and the G.N.W.T. to assist in their settlement negotiations;

(g) The fact that the Wage Gap Analysis employed a methodology which permits “ratcheting” contrary to the Supreme Court of Canada’s decision in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission);[3]

(h) The fact that the investigators never asked the G.N.W.T. about the existence of factors which might be relevant pursuant to subsection 11(4) of the CHRA;

(i) The fact that the Investigation Report said that the PSAC complaint was not disputed by the G.N.W.T.;

(j) The fact that the Investigation Report mentioned that, in the course of settlement discussions, the G.N.W.T. “presented a proposal for settlement”;

(k) The fact that the JEP Study was not attached to the Investigation Report.

Before dealing with each of these complaints in turn, I will deal with several general matters.

Firstly, it was submitted that, because the investigators did not make the decision, any apprehension of bias on their part is irrelevant. However, in SEPQA, Mr. Justice Sopinka determined that CHRA investigators are an “extension” of the Commission and that deficiencies in investigators’ reports can be attributed to the Commission. That being so, it seems to me clear that, if demonstrated, apprehended bias on the part of the investigators will taint their Investigation Report and will also taint the Commission’s decision because it adopted the investigators’ recommendations.

It was also submitted that the G.N.W.T. has acted in an untimely fashion in raising bias at the decision stage. It was argued that the decision involved only a preliminary assessment of the PSAC complaint and that the Commission was simply fulfilling a “gate keeper” role. That role, it was submitted, involved a consideration of the quality and quantity of evidence, but did not involve a consideration of the merits of the PSAC complaint. Accordingly, it is argued that bias allegations are premature.

In my view, it is true that the Commission’s decision was an administrative one made at the early stages of the PSAC complaint proceeding, it does not follow necessarily that the G.N.W.T.’s submissions on bias are premature. If a reasonable apprehension of bias can be shown at the investigation stage, it makes sense to deal with it as soon as possible rather than letting costly proceedings go forward which may later be set aside.

The G.N.W.T.’s Complaints

I will use the following reference as a framework for my review of the complaints. In his dissenting opinion in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at page 394, Mr. Justice de Grandpré said:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

My attention was drawn to a decision of my brother Noël J. in Canadian Broadcasting Corp. v. Canadian Human Rights Commisson et al. (1993), 71 F.T.R. 214 (F.C.T.D.), at page 225 where he applied a more stringent test when considering an allegation of actual bias in the context of an investigation where he found that an issue had, in fact, been pre-determined by the investigators. He said:

The test, therefore, is not whether bias can reasonably be apprehended, but whether, as a matter of fact, the standard of open-mindedness has been lost to the point where it can reasonably be said that the issue before the investigative body has been predetermined.

I was asked to apply this test in this case at bar, but I am not prepared to do so. Actual bias is not alleged here and, in my view, the approach taken by Mr. Justice de Grandpré is the correct one to be applied herein.

(a)       The Investigators

Sadler chose not to become a member of PSAC. Dallas, on the other hand, decided to become a PSAC member. Both investigators are Commission employees who are represented by PSAC and who reside in Ottawa. The G.N.W.T. says that there can be no confidence in a human rights system when members of a complainant union or persons represented by a complainant union are appointed to conduct a neutral fact finding exercise. The G.N.W.T. adds that the appearance of bias that has been created by the appointment of investigators whose collective bargaining rights are represented by the complainant need not have occurred. This is because the Commission has the power under subsection 32(2) of the CHRA to employ outside investigators under contract.

PSAC submits that the PSAC complaint is filed only on behalf of G.N.W.T. public service employees and that the outcome can have no bearing on employees such as the investigators who are members of a separate bargaining unit in Ottawa. According to PSAC, the proper way to approach this matter is to say that the investigators are represented in Ottawa by a complainant which filed a complaint on behalf of other and unrelated employees it also represents in the N.W.T. PSAC submits that, when one looks at the real nature of the complainant and the complaint, it is impossible to imagine that bias could exist. This is especially so given the early stage of the proceeding and nature of the decision which only involved a preliminary assessment of the PSAC complaint and the appointment of a conciliator.

The Commission supported PSAC’s position. It also argued that, because Commission employees including investigators must be employed in accordance with the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 and because section 6 of that statute gives every employee the right to union representation, it is inevitable that investigators will be union members. The Commission, therefore, submits that there is a statutory exemption from the possibility that an apprehension of bias will arise. For this argument, it relies on the decision of the Supreme Court of Canada in Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301.

Analysis

To begin let me say I do not accept the Commission’s submission about a statutory exemption for bias. In my view, in a situation such as this, where the statute provides for the hiring of investigators under contract, there is no statutory presumption that investigators will be represented by complainant unions.

On the question of reasonable apprehension of bias, it is common knowledge that PSAC has made pay equity issues something of a “cause célèbre”. Indeed, during argument I was reminded of PSAC’s long standing pay equity case before the Commission on behalf of federal government employees. The subject of the PSAC complaint is not, as PSAC submitted, a matter which is relevant only in the N.W.T. Pay equity is an issue of considerable interest nationwide and PSAC has been identified as an aggressive proponent of pay equity.

In my view, an informed person might reasonably wonder whether Dallas, who has chosen to become a member of PSAC, might have a pre-determined pro-union view of pay equity matters. On the other hand, I do not feel that an informed person would have the same concerns about Sadler because he did not choose to support PSAC by becoming a member. The simple fact that he is represented by PSAC and pays mandatory dues, does not create a reasonable apprehension of bias.

Although I have accepted the G.N.W.T.’s argument about the existence of a reasonable apprehension of bias on Dallas’ part, I must note that, on the evidence before me, her involvement in the investigation was minimal. She appears to have played no part in the JEP Study or in the Wage Gap Analysis and this work is, therefore, not tainted. Once Dallas became involved, it is not clear whether she replaced Sadler or worked with him to prepare the Investigation Report. However, both investigators signed the Investigation Report. The Commission’s decision under section 46 must be based on a bias-free investigation report. Yet, due to the apprehension of bias on the part of Dallas, the Investigation Report is tainted.

In my view, the problems caused by the perception of bias in Dallas’ case could be remedied if a new investigator were employed to work with Sadler to prepare a fresh investigation report. That investigator could be a person who is employed by the Commission, but who has never been a PSAC member or that person could be an outside investigator hired under contract.

(b)       The Commission Response to the Bias Issue

The Commission’s response to the bias issue (the response) is found in a letter dated May 16, 1993. In the response, the Commission made it clear that Sadler was not a PSAC member. However, it did not mention Dallas, who had been appointed by the date of the response, and accordingly it did not indicate that one of its investigators was a PSAC member. When having subsequently learned of Dallas’ appointment, the G.N.W.T. asked the Commission directly whether Dallas was a PSAC member in a letter to the Commission dated March 8, 1993, the Commission wrote a further letter dated March 25, 1993 in which it did not directly respond. The G.N.W.T. alleges that this conduct aggravated the apprehension of bias.

On one hand, a well informed reasonable third party might wonder at the Commission’s reluctance to be forthcoming about Dallas’ existence and her PSAC membership. On the other hand, that third party could conclude that nothing more needed to be said in view of the Commission’s clear statement in the response at page 2 that it would not view union membership as giving rise to a reasonable apprehension of bias.

On balance, I have concluded that, although the Commission’s response was patronizing and somewhat disingenuous on this issue, the Commission did make its position known. Accordingly, I do not view this issue as one which aggravated the reasonable apprehension of bias as it related to Dallas.

(c)        The Supporting Documentation

This is a matter which is said to have aggravated the belief in a reasonable apprehension of bias on the part of both investigators. The Investigation Report notes in paragraph 9, at page 4 that:

The complaint (Annex A) provides reasonable grounds for the allegation that rates of pay, determined by collective agreement established on a job family basis, may be higher for male dominated groups.

The problem arises because the G.N.W.T. never received some of the documentation that accompanied the PSAC complaint (the unseen documents). However, the Investigation Report notes in paragraph 18, at page 5 that some of the unseen documents were not provided to the G.N.W.T. because the investigators did not use them as evidence. Further, and consistent with this position, the unseen documents were not included in Annex A to the Investigation Report. As well, as the above quotation indicates, the unseen documents did not form part of the reasonable grounds in support of the PSAC complaint. In these circumstances, I cannot see that the omission of some of the documentation from the Investigation Report is problematic.

(d)       The Commission’s Role in the JEP Study

The Commission’s proposed role in the JEP Study was described in a document dated September 7, 1990 which appears as Annex B to the Investigation Report. Among other matters, the Commission undertook to “review the evaluation of jobs, wage gap calculations and corrective and maintenance methods”. The G.N.W.T. now says that the Commission was obliged to do an independent test of the value of the JEP Study results. On the limited evidence before me, I do not accept that the Commission undertook such a broad and essentially repetitive role. Accordingly, I am unable to conclude that the Commission’s conduct as it related to the JEP Study has any bearing on the bias issue.

(e)       JEP Study Results and the Wage Gap Analysis

As noted earlier, the purpose of the JEP Study was to generate data for the investigation of the PSAC complaint. As well, at the time the JEP Report was released and while the Wage Gap Analysis was being prepared, all parties appeared to accept the JEP Study data. Accordingly, I can see nothing improper about Sadler’s use of the JEP Study data in the preparation of his Wage Gap Analysis.

(f)        The Wage Gap Analysis Was Given to the Parties

Subsection 47(1) of the CHRA contemplates that settlement may occur in the course of an investigation, but does not provide investigators with a role in settlement negotiations. Sadler sent his Wage Gap Analysis to the parties with a letter dated June 17, 1992 in which he stated:

As this has been, to date, a joint project with minimal interference by this agency, we feel it to be appropriate that the parties jointly negotiate a settlement for submission to us. If you have problems in carrying out the linear regression/wage gap calculations for the salary years preceding 1992, please do not hesitate to contact us.

I have concluded that the preparation of the Wage Gap Analysis was within Sadler’s fact finding mandate and was appropriate for attachment to the Investigation Report. It is also clear that Sadler sent it to the parties for the purpose of their negotiations. Essentially, the Wage Gap Analysis told the parties in June of 1992 what the Investigation Report of April 1993 would show as the amount owing to employees.

The G.N.W.T. submits that the premature and unsolicited release of the Wage Gap Analysis prejudiced its position in the negotiations because Sadler’s view of the amount owing became a matter of public record and created expectations which made settlement more difficult. The G.N.W.T. says that this result was entirely foreseeable and that Sadler’s early and unjustified release of the Wage Gap Analysis during or pending negotiations, leads to a reasonable apprehension that he was biased in favour of the employees.

In other circumstances, I might find this argument persuasive because I do not think it was Sadler’s place to release the Wage Gap Analysis except in the context of the Investigation Report. However, in this case, it is clear that the lack of data was confounding all parties’ efforts to deal with the PSAC complaint. The JEP Study had been undertaken as a cooperative means of resolving the data problem. Specifically, the problem was that no one could determine if there was a gap and, if so, how large it might be, until the JEP Study data was collected and analyzed. It is noteworthy that, in June of 1992, when Sadler released his Wage Gap Analysis, the G.N.W.T. had not taken issue with the JEP Study results. It did not complain about those results until October, 1992. I, therefore, do not accept that a reasonable and well informed person would see Sadler’s provision of these figures as a basis for a reasonable apprehension of bias. Sadler was merely distributing material he thought everyone needed at a time when there was no dispute about the quality of the JEP Study data.

(g)       Ratcheting

The G.N.W.T. says that Sadler employed a “ratcheting” methodology in his Wage Gap Analysis which is contrary to SEPQA and which necessarily leads to a larger wage adjustment in favour of employees covered by the PSAC complaint. This, it is said, leads to a reasonable apprehension that he is biased in favour of the employees’ interests.

I am not satisfied, on the meagre evidence before me on this issue, that Sadler’s Wage Gap Analysis uses the ratcheting methodology or that it necessarily advantages those on whose behalf the complaint is made. I am doubtful on the first point because SEPQA makes it clear at page 888 that the Commission’s policy is against ratcheting. That being so, in the absence of clear evidence, I am not prepared to conclude that Sadler used a method which is contrary to the Commission’s practice. On the second point, based on the discussion in SEPQA at pages 888 and 903, it appears that ratcheting leads to a situation where all employees receive equal pay for work of equal value irrespective of sex. This result, it seems to me, would benefit employees other than those covered by the PSAC complaint.

On balance, I have concluded that I do not have sufficient information about ratcheting to reach a conclusion on this issue.

(h)       Subsection 11(4) of the CHRA

Subsection 11(4) reads as follows:

11. …

(4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference.

The G.N.W.T. submits that the investigators’ minds were closed because they never asked the G.N.W.T. whether any factors existed pursuant to subsection 11(4) of the CHRA. This argument is not persuasive. If the G.N.W.T. had exculpatory matters to raise based on the Commission’s guidelines, it is reasonable to assume that it would bring them forward with vigour at the first opportunity. If no such matters were raised it would be reasonable for the investigators to assume that none existed. In spite of this, prudent investigators might make inquiries, but I cannot find a reasonable apprehension of bias based on an absence of such inquiries.

(i)         The PSAC Complaint Was Undisputed

Paragraph 2 of the Investigation Report reads in part as follows:

The respondent did not dispute the allegations and negotiated a joint study with the complainant to examine the pay equity portion of the complaint and to provide information for the negotiation of corrective action; the respondent also indicated a willingness to convert to a single job evaluation system and to negotiate changes to the salary structure. [My emphasis.]

Issue is taken with the first six words of the paragraph on the basis that the G.N.W.T. was not asked by the investigators to express its opinion. My conclusion on this issue is the same as the one I reached under issue (h) above. If the G.N.W.T. disputed the allegations, it should have said so in clear terms. While a formal inquiry might have been appropriate, in my view, a reasonable apprehension of bias does not arise because the investigators failed to make inquiries during a widely publicized investigation.

(j)         Settlement

Paragraph 19 of the Investigation Report reviewed the history of the settlement negotiations and, in so doing, stated “Negotiations resumed in February 1993 when the respondent presented a proposal for settlement”. The details of the offer were not presented, yet the G.N.W.T. says that the investigators did not even need to say that the G.N.W.T. had made an offer. The G.N.W.T. submits that the prospects for settlement could have been effectively canvassed if the investigators had simply said that the parties were open to settlement. It further submits that the investigators’ disclosure breached the “without prejudice” principle that governed the settlement discussions and, of most relevance, it says that the disclosure of the existence of the G.N.W.T.’s offer weakened the G.N.W.T.’s negotiating posture and that this fact leads to a reasonable apprehension of bias on the part of the investigators in favour of the PSAC.

Again, I cannot agree. There is nothing in the record to show that the Commission was ever a party to or involved in the separate “without prejudice” discussions. As well, there is nothing to indicate that the Commission received information about the existence of a G.N.W.T. settlement offer in confidence. While it might have been preferable to avoid mentioning the existence of an offer, I am not able to conclude that the investigators’ conduct on this issue supports a reasonable apprehension of bias.

(k)        The Investigation Report Did Not Attach the JEP Study

The fact that the JEP Study was not attached to the Investigation Report is also said to lead to a reasonable apprehension of bias. This is not persuasive. The JEP Study was a public document and was frequently referred to in the Investigation Report. In these circumstances, I cannot find any basis for an apprehension of bias in the failure to actually attach the JEP Study to the Investigation Report.

In conclusion on this issue, I have determined that the complaints do not establish a reasonable apprehension of bias on the part of Sadler. However, I am satisfied that it is open to an informed person to reasonably conclude that, in the case of Dallas, open mindedness was lost to the point where her views would be seen as pre-determined by reason of her voluntary membership in PSAC.

Conclusion

The decision will be set aside.

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