A-342-74
In re Harris and in re Female Employees Equal
Pay Act
Court of Appeal, Thurlow and Urie JJ. and
MacKay D.J.—Toronto, June 17 and 18; Ottawa,
August 8, 1975.
Judicial review—Referee inquiring into complaint under
Female Employees Equal Pay Act—Inferentially deciding
complaint supportable and requiring employer to pay compen-
sation—Whether referee erred in construing section 4—
Whether work performed by complainants identical, or sub
stantially identical to that performed by others in same salary
group—Female Employees Equal Pay Act, S.C. 1956, c. 38, s.
4—Federal Court Act, s. 28.
Complainants, claiming that they had been aggrieved
because of an alleged violation of the Female Employees Equal
Pay Act (since repealed) complained to the Minister who
referred the matter to a referee. The referee decided inferen-
tially that the complaint was supported by the evidence, and
made an award requiring the employer to compensate the
complainants.
Held, the award is set aside and the matter is referred back
to the referee on the basis that the complaint is not supported
by the evidence. The referee's interpretation of section 4 of the
Act is unacceptable. It is not possible to accept his view that
the word "work" means "an accumulation of skills" and that
work may be substantially the same although jobs, duties and
services may be different. The words in that section must be
given their ordinary and literal meaning. Using the words in
this sense, what a female employee does for an employer and
what a male employee does for an employer shall be deemed to
be the same, or essentially the same, if the acts they are called
on to do are the same, or are essentially and without material
qualification the same. The complainants were being paid on
the same basis as one another and one other person who was
performing essentially the same tasks, and there was no evi
dence upon which a finding of failure to comply with the Act
could be made.
McLeod v. Egan [1975] 1 S.C.R. 517 and Grey v. Pearson
(1857) 6 H.L.C. 61, 10 E.R. 1216, applied.
JUDICIAL review.
COUNSEL:
B. M. W. Paulin, Q.C., and L. Binder for
applicant.
P. Hyndman, Q.C., and R. Arthurs for
respondents.
SOLICITORS:
Osier, Hoskin and Harcourt, Toronto, for
applicant.
Blackwell, Law, Treadgold and Armstrong,
Toronto, for respondents.
The following are the reasons for judgment
rendered in English by
THURLOW J.: The facts in this matter are set
out in the reasons for judgment of Mr. Justice
Urie. I agree with his opinion that the learned
referee erred in his interpretation of section 4 of
the Female Employees Equal Pay Act and I also
agree with the interpretation Mr. Justice Urie has
put upon that provision.
The Female Employees Equal Pay Act, which
was enacted in 1956 and has since been repealed
and replaced by other provisions, was, undoubted
ly, remedial legislation and it should be interpreted
accordingly. But the extent of the evil that
required to be remedied, as it may appear today,
cannot afford a surer guide to the interpretation of
the remedial provisions which the Act contained
than the ordinary meaning of the words used in
those provisions. In them, Parliament did not
require that there be equal pay for "similar or
substantially similar" work, nor that there be
equal pay for work involving "similar or substan
tially similar" skills or knowledge or talents. Nor
did it require equal pay for work of "equal or
substantially equal" value. What was required was
that female employees be paid at a rate that was
not less than the rate of pay for male employees
for "identical or substantially identical" work.
There was evidence before the learned referee
upon which he could conclude that the two com
plainants and one other female employee of Bell
Canada, all three of whom held appointments
designated as Assistant-Labour Relations, were
employed to do work that was "identical or sub
stantially identical" within the meaning, of the
statute. But there was no evidence that any male
employee, at any material time, held such an
appointment or that any male employee performed
or was required to perform duties or rendered or
was required to render services that were "identi-
cal or substantially identical" to those of any of
the three female employees employed as Assist-
ants-Labour Relations. I am, therefore, of the
opinion that there was no evidence before the
learned referee upon which he could conclude that
any male employee of Bell Canada was paid more
than the complainants for identical or substantial
ly identical work—as that expression has been
interpreted by Mr. Justice Urie—and that the
material before the referee would not sustain a
finding that the complaint was supported by the
evidence.
I would set aside the award and refer the matter
back to the referee to be dealt with on that basis.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: This is an application under section 28
of the Federal Court Act to review and set aside
the decision of a referee appointed under section 6
of the Female Employees Equal Pay Act' (herein-
after called "the Act") to inquire into complaints
made in 1970 by Miss Patricia Harris and Miss
Elizabeth Kennedy against their employer, Bell
Canada.
By the terms of the appointment it was also
referred to the referee to decide whether the com
plaints were supported by the evidence and to
make whatever order he considered necessary to
carry his decision into effect if he found the,com-
plaint substantiated by the evidence.
The complaint read as follows:
Montreal, Que.
26 November 1970.
Hon. Bryce Mackasey,
Minister of Labour,
340 Laurier Avenue West,
Ottawa, Ontario.
Dear Sir,
The undersigned are all female employees in the manage
ment field employed by Bell Canada.
Despite the fact that the Female Employees Equal Pay Act
has been in effect for fourteen years, we have had reason to
believe that we were being paid less than men doing "identical
or substantially identical" work, but proof might have been
difficult.
Two years ago, the company undertook a management job
revaluation program, the principles of which are set out in the
enclosed booklet. This makes it possible now to compare jobs,
and it is now clear that each of the writers is being paid
$110.00 less per month than a man doing an "identical or
substantially identical" job, according to the Company's defini
tions, and in fact.
S.C. 1956, c. 38.
We have engaged in correspondence with the Executives of
the Company in an attempt to have the matter corrected, but
the only assurance we have had is that we are to hope for a
gradual move toward equal pay for women doing the same
work as men, which may be reached in five years; but we have
been given to understand that this gradual shift is conditional
upon factors such as the Company's "need to develop some new
philosophical and attitudinal approaches".
We are therefore lodging this formal claim with you that we
are aggrieved under the provisions of the Female Employees
Equal Pay Act and request the appointment of a Fair Wage
Officer to investigate our claim. We are in a position to
substantiate our claim, and will be pleased to give the Fair
Wage Officer such other information and evidence as he may
request from us.
Your respectfully,
(sgd) Elizabeth Kennedy
(sgd) Patricia Harris
(sgd)
On the first day of the hearings before the
referee following a request by counsel for Bell
Canada for particulars of the name of the male
employee referred to in the complaint and the
identical or substantially identical job done by
him, counsel for the complainants stated their case
as follows:
Bell Canada evaluated jobs under a formal job evaluation
program. Bell Canada used eight factors to determine the value
of the respective jobs. These are set out in the booklet "Man-
agement Job Evaluation". By applying these criteria Bell
Canada determined which jobs were substantially identical.
When the complainants jobs were valued they were classified in
salary group 14.
Many different jobs were classified in salary group 14 and
represented many different positions held by both men and
women as set out at page 40 of the Record. Having established
one salary group 14 Bell Canada then further refined the salary
group into 14X and 14 based on sex.
The highest rate of pay for men was the same regardless of the
job being done within salary group 14. The highest rate of pay
for women was the same regardless of the job being done within
salary group 14X.
The highest rate of pay for men was higher then (sic) the
highest rate of pay for women in 14 and 14X respectively.
The complainants qualified for the highest rate within salary
group 14 but received less salary than the highest rate being
received by men within salary group 14, because they were
classified as 14X.
By the decision attacked in these proceedings
the referee decided inferentially, though not
expressly, that the complaint was supported by the
evidence and he made an award requiring Bell
Canada to pay the complainants "all monies lost
from the date of their employment by the failure
to grant them payment as if they were in the same
wage level in job category 14 as they were in job
category 14X". The effect of this, if sustained, is
that each of the complainants will be entitled to
additional pay in the amount of about $110.00 for
each month of the year following February 1970
and to somewhat smaller additional amounts for
each month in the two succeeding years during
which their pay had not reached the maximum for
fully satisfactory employees in category 14.
A brief summary of the facts that appear to me
to be relevant follows:
For some years prior to February 1970 both of
the complainants and one other female employee
had been employed by Bell Canada in junior man
agement positions referred to as "Assistant-
Labour Relations". The function of each, in gener
al, was to attend to problems arising in connection
with a particular labour union contract.
As there were differences in the several union
contracts and the services required differed, the
duties carried out by these three employees were
not precisely the same but a description of the
position of Assistant-Labour Relations prepared
by Miss Kennedy in September 1968 which
became an exhibit at the hearing, gives details of
the duties performed by the three employees and it
was adopted by the company and the other two
employees as a description of the jobs of all three.
There were at that time some 8000 persons
employed by Bell in management or supervisory
positions, including some 2000 in what had been
described as "the female hierarchy" because of the
fact that the majority of persons in the group
historically were female. The remaining 6000 were
in "the male hierarchy", the majority of incum
bents being male. Within each of the "hierarchies"
for the purposes of salary administration
employees were placed in salary groups. Within
the female hierarchy these groups were designated
by numbers in the "50's" such as 51, 52, 53 etc.
The salary groups in the male hierarchy were
designated by numbers in the "teens".
In 1968 and 1969 Bell Canada carried out an
extensive review and evaluation of the jobs in
positions of its management personnel and thereaf
ter categorized them at the same or different levels
assigning maximum pay according to the level.
Shortly after the evaluation plan• was commenced
it had been decided by the Company to make use
of the plan to integrate the two hierarchies into
one. Because of the larger number in the old male
hierarchy, the plan was to absorb the old female
hierarchy into it.
Under the old system the complainants had been
in salary group 54. Salary group 14 was one
assigned in respect of positions held predominantly
by males and following the evaluation and other
procedures the maximum pay for fully satisfactory
employees holding level 14 positions was set for
the year following February 9th, 1970 at $880 per
month. At the same time the positions of the
complainants were categorized in level 14X, the
maximum pay for which for the same period and
for fully satisfactory employees was set at $770
per month. Included in that group were eleven
male managerial or supervisory employees. All
employees from salary group 54 entered salary
group 14X at the rate of pay which they had been
receiving in salary group 54. Each was given an
increase at the time, the amount of which depend
ed on several factors. The maximum increase for
fully satisfactory employees in salary group 14X,
male or female, was $85.00 per month.
The major factors which entered into the deter
mination of the pay for these levels were the point
scores achieved on the basis of the comparative
value to the company of the services required of
the employees, salaries paid for comparable posi
tions in other industries and finally the judgment
of senior management as to values of the jobs to
reduce any distortions in their importance which
might have resulted from the evaluation process.
When, three years later, the maximum pay for
level 14X employees had, by successive increases,
reached parity with that of level 14, and the
purpose for which the level 14X had been created
had been fulfilled, the 14X category was dropped
and the positions of employees in it were included
in level 14.
The learned referee held that the reason that the
jobs in level 14X were so categorized was because
the majority of their incumbents were female and
that this was contrary to the Act. Counsel for the
respondents argued in addition that having been
found to be fully satisfactory in their positions, and
having been paid at the maximum rate under
salary group 54, the respondents were entitled to
receive the maximum salary for group 14 to which
their jobs had been assigned:
Counsel for the applicant, on the other hand,
took the position that as a result of company policy
no one, male or female, was entitled to be paid, nor
was paid, an increase of more than $85.00 per
month as a result of integration nor, as a result of
a move from one salary group to another, was any
employee entitled to move from the maximum of
his or her old group to the maximum in his or her
new group.
It seems clear that in order to support the
learned referee's award, as a first step it is neces
sary that his interpretation of section 4 2 of the Act
be accepted as correct. While I did not understand
that counsel for the applicant during argument
took issue with the right of this Court to determine
for itself the correctness of that interpretation, it is
beyond doubt that not only does the right exist but
an obligation rests with the Court to do so. In
McLeod v. Egan' Laskin C.J.C. at page 519 puts
the point succinctly:
2 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 subsection
(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
differences in rates of pay.
3 [1975] 1 S.C.R. 517.
No doubt, a statute like a collective agreement or any other
document may present difficulties of construction, may be
ambiguous and may lend itself to two different constructions,
neither of which may be thought to be unreasonable. If that be
the case, it none the less lies with the Court, and ultimately
with this Court to determine what meaning the statute should
bear. That is not to say that an arbitrator, in the course of his
duty, should refrain from construing a statute which is involved
in the issues that have been brought before him. In my opinion,
he must construe, but at the risk of having his construction set
aside by a Court as being wrong.
It is thus necessary to examine the interpreta
tion given the section by the referee. At pages 18
and 19 of his award he interprets the section as
follows:
The real question, then, is whether "work", for the purposes of
the Act, is characterized by the matters dealt with by an
employee or by the evaluation of the accumulation of skills
brought to bear on this work by the employees involved. On this
point, the Company stresses the former view and says this is
witnessed by s. 4(2) of the Act, which talks of "duties and
services" and by reference to the alleged purpose of the plan,
which had nothing to do with identity in work, but only with a
simplified (from the point of view of administration) wage
scale. The complainants, on the other hand stressed the remedi
al nature of the legislation and the consideration in the mind of
the Company when they established this wage schedule.
After considerable research and after even more considerable
contemplation of the issue, it is my view that the Company did
not have option to delay the full integration of the two hierar
chies. In my opinion, the word "work" is one of an extremely
imprecise nature, a point admitted in argument even by counsel
for the Company. Thus, it seems possible to look at the word
from the point of view of an accumulation of skills. Conse
quently, I accept this as an interpretation acceptable under the
Act, especially as this is legislation which is clearly remedial
and, as noted by counsel for the complainants, should therefore
be given a broad interpretation to deal with the evils it seeks to
prevent. Naturally, such a result obtains from the interpreta
tion I have placed on the provision. Again, contrary to what the
Company urged, I believe s. 4(2) of the Act rather than
supporting the Company position, supports the complainants'
position as it implies that there are other aspects to work than
"duties or services". Again, it is of some significance that plans
similar, although not always identical to the one used by the
Company here are widely accepted as a basis for determining
wages throughout industry. This of course, supports the view
that to many people work is defined in the way urged by the
complainants. Finally, to put the interpretation on s. 4(1) of the
Act urged by the Company would virtually eliminate its
application from any but the most menial work. It seems
passing strange that this would be the intent of the Legislature.
In my view, therefore, a plan such as that used by the Company
in this case can be used to determine whether "work" is
"identical" or "substantially identical". In the present circum
stances, therefore, it can be hardly argued that the complai-
nants were not doing "identical or substantially identical work"
to those male employees in category 14 jobs and, thus, the main
thrust of their argument succeeds.
With respect, I am unable to agree with this
view of the meaning of the section. It is a well
known canon of construction that "the grammati
cal and ordinary sense of the words [in a statute]
is to be adhered to, unless that would lead to some
absurdity, or some repugnance or inconsistency
with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may
be modified so as to avoid the absurdity and
inconsistency, but no further. " 4 In my opinion, the
words in the section under review can be used in
their literal, ordinary and grammatical sense with
out leading to any inconsistency or absurdity when
read with the remainder of the Act.
Subsection 1 provides in effect that female
employees shall be paid at the same rate as male
employees if both are employed in identical or
substantially identical work. Subsection 2 provides
that the work of male and female employees 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 substantial
ly identical." Clearly, then, by use of the disjunc-
tive "or" in the phrase "jobs, duties or services",
the latter subsection directs that the "work" of the
employees will be deemed identical or substantial
ly identical if any one of the three bases of com
parison is common to the work of female and male
employees. In my view, the three words are not
words of art but are in common usage and are
unambiguous and in the context of the subsection
are capable of being used in their ordinary and
literal sense.
Because the words are not defined in the statute
itself and because they are words in common
usage, resort may be had to authoritative dictio
naries for assistance in determining their
meaning'. The following definitions of the key
words in section 4 appear in The Shorter Oxford
4 Grey v. Pearson (1857) 6 H.L.C. 61, 106; 10 E.R. 1216 at
1234.
5 Craies on Statute Law, 7th ed. page 161.
Dictionary, 3rd ed.
Job 1. A piece of work; esp. a small definite
piece of work in one's own calling.
2. A piece of work, or transaction done
for hire, or with a special view to profit.
4. Anything one has to do.
5. An affair, business, occurrence, state of
things.
Duty Action, or an act, that is due by moral
or legal obligation;
The action and conduct due to a
superior.
Service Performance of the duties of a servant;
attendance of servants; work done in
obedience to and for the benefit of a
master.
Work I. 1. Something that is or was done; what
a person does or did; an act, deed, pro
ceeding, business.
2. Something to be done or something to
do; occupation, business, task, function.
Identical 1. The same; the very same.
2. Agreeing entirely in material, constitu
tion, properties, qualities or meaning.
The word "substantially" is defined in Black's
Law Dictionary, 4th ed. -(revised) as "essentially;
without material qualification; in the main; in
substance; materially; in a substantial manner".
Thus, using the words of section 4 in their
literal, ordinary and grammatical sense, what a
female employee does for an employer and what a
male employee does for an employer shall be
deemed to be the same, or essentially and without
material qualifications the same, if what the
employees have to do, the acts or actions the
employees are called upon to perform or what is
done by the employees for the employer are the
same or essentially and without material qualifica
tion the same. When the requirement of the Act is
stated in such a fashion it is not possible, in my
opinion, to view the word "work" as meaning "an
accumulation of skills" as found by the referee.
Implicitly, if not explicitly, he then decided that
. work may be substantially the same irrespective of
the fact that the jobs, duties and services may be
quite different.
The fact that the legislation may be viewed as
remedial in no way affects the proposition that the
natural, literal and grammatical meaning ought to
be attributed to the words of the section, particu
larly if deviating from the proposition means that
the meaning of the words becomes loose, inexact
and difficult to apply in given factual situations.
Moreover, I find difficulty in seeing how putting
the interpretation on the section which I do "would
virtually eliminate its application from any but the
most menial work." Certainly the work of the
respondents could not be considered menial and
yet even they admit that their work and that of the
one other Assistant-Labour Relations is substan
tially identical in the restricted sense in which that
term is used in the interpretation of the section
which I have adopted. Clearly the referee's com
ment is unfounded.
On the basis of my construction of section 4, did
the learned referee err in finding that the applicant
committed a breach thereof in its pay treatment of
the respondents? While strictly speaking it is not
necessary to decide the matter in view of the
disposition which I propose to make of the applica
tion, I agree with the referee that the applicant's
argument that the particulars of the respondents'
complaints given at the commencement of the
hearing before the referee changed the nature of
the complaints from the personal ones originally
filed with the Minister to a general complaint
impugning the job evaluation program of the
applicant, is without foundation since, as the
referee points out, "the nub of the complainants'
case is that the administration of this plan shows
the Company's attitude towards equal pay for men
and women ...".
It was argued by counsel for the respondents
that on the evidence, after the job evaluation plan
had been completed, the respondents had been
rated on the eight factors within the three broad
areas of evaluation. Having been found to be
"fully satisfactory" in the performance of their
work, they were entitled to the maximum salary in
the salary group to which their jobs had been
assigned, namely 14, because they had been at the
maximum salary level in their former salary group,
54. Since none of the factors permitting the excep
tions to equality of pay under subsection 3 of
section 4 was present, there was no justification for
the creation of the X category within salary group
14 with its salary differential from the main body
of the group. That subdivision and salary differen
tial in their submission, and as found by the
referee, was based on the sex of the predominant
number of persons who had, prior to the
implementation of the plan, been in salary
group 54.
At page 18 of his award, the referee stated "it
seems beyond argument that the reason that cer
tain jobs, including the complainants' were given
"X" rates was that the vast majority of their
incumbents were female." With respect, this is an
inference which, in my view, is not supported by
the evidence. The clear and uncontradicted evi
dence was to the effect that the reason for the
designation was that the fusion of the two former
"hierarchies", male and female, was to take place
over a period of five years, although in fact it was
completed in about two years. Designating those
persons, male and female, who moved from the
former female hierarchy was, from an administra
tive point of view, to facilitate their identification
during that transition period. Such identification
was necessary, according to the testimony of Mr.
Bagnall, Assistant Vice President of Salary and
Benefits, to make further changes in the plan
easier to carry out if experience showed such
changes were necessary.
However, whether or not this is the case is, I
think, immaterial. The sole issue is whether the
work performed by the respondents was identical
or substantially identical with that performed by
others in salary group 14. Put another way, were
the jobs, duties and services in which they engaged
the same or essentially the same as those of any
male in group 14 who was not "X" rated?
Included in the record of the proceedings is a
"spread sheet" showing the various jobs for Head
quarters management staff in salary groups 14 and
15. It discloses that the position of Assistant-
Labour Relations is grouped under the heading
"H.Q.—Other", together with a number of other
assistants in other departments or branches, chief
clerks, librarian and exhibit technician. Alsc
included in the record are position descriptions for
a number of those included under "H.Q.—Other"
as well as an Assistant-Budget and Results whose
position appears under the heading "Commercial"
on the "spread sheet".
Even a cursory review of the job, duties and
responsibilities in each of the position descriptions
reveals wide differences in the tasks to be per
formed by and the responsibilities of each. For
example, the position of Assistant-Labour Rela
tions has no supervisory responsibility whereas the
positions of Technical Assistant and Exhibit Tech
nician, neither of which is "X" rated, have, as does
the position of Assistant-Budget and Results which
is so rated.
The reason that those positions and all others
which are included in salary group 14 were
grouped together was, it appears from the evi
dence, to bring those persons occupying the posi
tions therein into a proper salary relationship with
those whose contributions to management were
similar and to compensate them on a basis compa
rable for similar jobs in other industries.
The work performed by the incumbent in each
position might not be identical but might well be
substantially identical, i.e. essentially the same, as
others in the same position. But it is clear from the
job descriptions that those occupying other posi
tions in the group perform duties and services
substantially different from one another, although
the value to the company of such services and thus
the compensation which should be paid to them for
their performance were deemed by the company to
be comparable. Consequently, they were placed in
the same salary group.
There is, therefore, in my view, no basis for the
referee's finding that the respondents were not
receiving equal pay for equal work. They were
being paid on the same basis as one another and
the one other person who was performing essen
tially the same tasks and there was no evidence
upon which a finding could be made that there was
a failure to comply with the provisions of the Act.
Accordingly, the referee's award should be set
aside and the matter should be referred back to
him to be dealt with on the basis that the com
plaint of the complainants is not supported by the
evidence.
* * *
MACKAY D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.