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Bell Canada (Applicant)
v.
Earl E. Palmer (Respondent)
Trial Division, Heald J.—Toronto, June 11; Ottawa, June 19, 1973.
Statutes—Labour relations—Civil rights—Statute provid ing equal pay for women—Provision for complaints to be referred to Fair Wage Officer and Referee—Repeal of provi- sion—Complaint pending at time of repeal—Whether rights of complainant preserved—Female Employees Equal Pay Act, 1956, c. 38—Canada Labour (Standards) Code, R.S.C. 1970, c. L-1, am. 1970-72, c. 50, secs. 8, 23—Interpretation Act, R.S.C. 1970, c. I-23, s. 35(c) and (e).
The Female Employees Equal Pay Act, 1956, c. 38, pro vided that any person claiming to be aggrieved because of an alleged violation of the Act could complain to the Minis ter who might refer the matter to the Fair Wage Officer and, if the matter could not be settled, to a Referee. That Act was repealed effective July 1, 1971, by 1970-71-72, c. 50, s. 23 (amending the Canada Labour (Standards) Code) which statute by section 8 prohibited wage differentials between male and female employees but did not provide for the reference of disputes to a Fair Wage Officer and a Referee. On November 26, 1970, two women employees of Bell Canada Ltd. complained of a grievance. Their complaint was referred to a Fair Wage Officer who was unable to settle the matter. On February 23, 1973, the Minister referred the complaint to a referee. Bell Canada applied for a writ of prohibition.
Held, the writ must be refused. Having regard to section 35(c) and (e) of the Interpretation Act, R.S.C. 1970, c. I-23, the rights acquired by the complainants under the repealed statute were preserved.
Gell v. White [1922] 2 K.B. 422, followed; Regina v. Coles [1970] 1 O.R. 570, distinguished.
APPLICATION for writ of prohibition. COUNSEL:
B. M. Paulin, Q.C., and G. C. Clermont for applicant.
M.P. Hyndman, Q.C., and D. Arthurs for E. Kennedy and P. Harris.
N. Chalmers, Q.C., for Deputy Attorney General of Canada.
SOLICITORS:
White, Bristol and Beck, Toronto, for applicant.
Blackwell, Law, Treadgold and Armstrong, Toronto, for E. Kennedy and P. Harris.
Deputy Attorney General of Canada for the Crown.
HEALD J.—This is an application for a writ of prohibition in which the applicant asks that one Earl E. Palmer, the respondent herein, be pro hibited from taking any proceedings as a Referee appointed under the provisions of sec tion 6 of the Female Employees Equal Pay Act, S.C. 1956, c. 38 and more particularly from conducting a hearing into the complaints of Elizabeth Kennedy and Patricia Harris against the applicant under said Act.
On November 26, 1970, Elizabeth Kennedy and Patricia Harris (hereafter Kennedy and Harris) made a complaint that they were aggrieved under the provisions of said Act. The relevant portions of said statute are sections 4 and 6(1) to (7) which read as follows:
4. (1) No employer shall employ a female employee for any work at a rate of pay that is less than the rate of pay at which a male employee is employed by that employer for identical or substantially identical work.
(2) Subject to subsection (3), for the purposes of subsec tion (1), work for which a female employee is employed and work for which a male employee is employed shall be deemed to be identical or substantially identical if the job, duties or services the employees are called upon to perform are identical or substantially identical.
(3) Payment to a female employee at a rate of pay less than the rate of pay at which a male employee is employed does not constitute a failure to comply with this section, if the difference between the rates of pay is based on length of service or seniority, on location or geographical area of employment or on any other factor other than sex, and, in the opinion of the Fair Wage Officer, Referee, court, judge or magistrate, the factor on which the difference is based would normally justify such difference in rates of pay.
6. (1) Any person claiming to be aggrieved because of an alleged violation of any of the provisions of this Act may make a complaint in writing to the Minister and the Minister may instruct a Fair Wage Officer to inquire into the com plaint and endeavour to effect a settlement of the matters complained of.
(2) If the Fair Wage Officer is unable to effect a settle ment of the matters complained of, he shall make a report to the Minister setting forth the facts and his recommendation
thereon. -
(3) The Minister may
(a) refer the complaint to a Referee to be appointed by the Minister, or
(b) decline to refer the complaint to a Referee if he considers it to be without merit.
(4) Where the Minister has referred a complaint to a Referee the Referee shall
(a) inquire into the matters referred to him,
(b) give full opportunity to all parties to present evidence and make representations,
(c) decide whether or not the complaint is supported by the evidence, and
(d) make whatever order he considers necessary to carry his decision into effect, which may include payment of the remuneration or additional remuneration that, during a period not exceeding six months immediately preceding the date of the complaint, would have accrued to the employee if the employer had complied with this Act.
(5) In considering a complaint under this Act a Fair Wage Officer or a Referee may enter the premises where any work, business or undertaking relating to the complaint is carried on and may inspect payroll and other employment records; and the owner or person in charge of such premises and every person found therein shall give the Fair Wage Officer or Referee all reasonable assistance in his power and furnish the Fair Wage Officer or Referee with such informa tion as he may reasonably require.
(6) A Referee to whom a complaint has been referred has all the powers of a Conciliation Board under section 33 of the Industrial Relations and Disputes Investigation Act.
(7) Every person in respect of whom an order is made under this section shall comply with the order.
Pursuant to the provisions of section 6 (supra), the Minister of Labour instructed a Fair Wage Officer to inquire into said complaint and to try to effect a settlement of the matters complained of. There were meetings between senior officials of the applicant and various officials of the Federal Department of Labour on February 25, 1971, March 30, 1971, August 6, 1971, May 18, 1972 and November 15, 1972. However, apparently the Fair Wage Officer was unable to effect settlement and on February 23, 1973, under the provisions of section 6(3)(a) of said Act, the Minister of Labour referred said complaint to the respondent, the Associate Dean of Law, University of Western Ontario as Referee.
The said Female Employees Equal Pay Act was repealed, effective July 1, 1971 by S.C. 1970-71-72, c. 50, s. 23. Section 8 of the same statute makes new provisions concerning equal wages for female employees and reads as follows:
14A. (1) No employer shall establish or maintain differ ences in wages between male and female employees, employed in the same industrial establishment, who are performing, under the same or similar working conditions, the same or similar work on jobs requiring the same or similar skill, effort and responsibility.
(2) Payment to male and female employees of different wages does not constitute a violation of subsection (1) if the difference is based on any factor or factors other than sex that justify such a difference.
(3) No employer shall reduce the wages of an employee in order to comply with subsection (1).
A comparison of the provisions in force after July 1, 1971 with those in force prior thereto makes it obvious that the Enforcement Proce dure provisions of section 6 of the old Act have disappeared and are not present in the new legislation.
Counsel for the applicant submits that the respondent was appointed by the Minister as Referee under the authority of the old Act at a time when the old Act had been repealed, that there was no corresponding section of the new Act authorizing such appointment, that accord ingly the Minister had no authority to appoint the respondent on February 23, 1973 and because of said lack of jurisdiction, asks the Court to prohibit the respondent from taking any proceedings under said appointment.
Section 35 of the Interpretation Act, (R.S.C. 1970, c. I-23) is relevant in the circumstances of this case. The pertinent portions thereof read as follows:
35. Where an enactment is repealed in whole or in part, the repeal does not
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enact ment so repealed;
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed as if the enactment had not been so repealed.
In my view, at the time of the repeal, on July 1st, 1971, of the Female Employees Equal Pay Act, Kennedy and Harris had acquired and accrued to them rather substantial rights under the provisions of said Act. They had the right to the ongoing inquiry and investigation of the Fair Wage Officer, the right to ask the Minister to appoint a Referee under subsection (3) and if the Minister did so appoint a Referee (as he purported to do in this case), to the exercise, in appropriate circumstances, by the Referee of the very substantial powers given to the Referee under said section 6.
Applicant's counsel submits that, since the Minister's appointment of the Referee did not take place until after the Act was repealed, no one knew or could be sure, at date of repeal, that the Minister would, in fact, appoint a Referee, and that, therefore, Kennedy and Harris cannot be said, at date of repeal, to have had any "rights" of which they were deprived by the repeal. I do not agree with this submis sion. In my view, section 6 provided a code of procedure for enforcement of the rights given to female employees by section 4 of the Act. This procedure was instituted or set in motion by the complaint contemplated in section 6(1). In this case, the complaint, lodged on November 26, 1970, set the section 6 procedure into motion and it was ongoing on July 1, 1971, when the Act was repealed and was not replaced by a comparable procedure. These complainants had done everything required of them to be done well before July 1, 1971 so as to become en titled to the procedures set out in section 6 of the Act. I therefore have the view that para graphs (c) and (e) of section 35 apply to the facts of this case. These claimants had a right to the investigation by the Fair Wage Officer, and to his efforts in effecting a settlement of their complaint, and, if he could not settle the com plaint, to the appointment of a Referee at the Minister's discretion, and, in such event, to the
exercise of the Referee's powers as set out in the section.
In the English case of Gell v. White [1922] 2 K.B. 422, on similar facts involving similar legislative provisions, the Court held that the claimant in question had not lost the rights acquired by him under the repealed Act. Appli cant's counsel relied on the case of Regina v. Coles [1970] 1 O.R. 570. However, the facts in that case are different from the case at bar. That case involved a charge under the Ontario Securities Act. At the time the information was sworn, the Act which was in force on the date of the commission of the offence had been repealed and replaced by a new Securities Act.
The difference between that factual situation and the one at bar, is that in the Coles case (supra), the prosecution was not launched during what Mr. Justice Laskin describes as "the natural life of the old Act". In this case, the proceedings in question were launched during the natural life of the old Act. I am satisfied from a reading of the judgment of Mr. Justice Laskin in the Coles case (supra) (par- ticularly pages 573, 574 and 575 thereof) and from a consideration of sections 35 and 36 of the Interpretation Act that said sections operate to validate the appointment of the respondent by the Minister in this case and that he should not be prohibited from proceeding in accord ance with the provisions of section 6 of the repealed Act.
The application is therefore dismissed. The respondent was not represented on the motion. However, the complainants Elizabeth Kennedy and Patricia Harris were represented as was the Attorney General of Canada. The Attorney General of Canada will have costs of the motion against the applicant if asked for. Since Ken- nedy and Harris were represented by one coun sel, they will have one set of costs of the motion against the applicant also, if asked for.
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