THE ATTORNEY GENERAL OF CANADA V WALDEN.

Date: 20100504
Docket: T-55-08
Citation: 2010 FC 490
Ottawa, Ontario, May 4, 2010
PRESENT: The Honourable Madam Justice Mactavish


BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and



RUTH WALDEN, ARLENE ABREY, GLORIA ALLAN, CINDEE ANDRUSIAK, ELIZABETH ANTONY, SANDRA ARMITAGE, KAREN ATTRIDGE, MARGARET HELEN ATTWOOD, AGNES BABA, KIMBERLY BARBER, GINGER BARNES (HAINES), PATRICIA BASSO, LINDA BATES, LÉA BEAUCHAMP-CHARLTON, ROXANNE BÉDARD, NICOLE BEGGS, SHERYL ANN BELL, AFFRENE BENJAMIN, SYLVIE BENOIT-LEMIRE, DIANA BERARDINETTI, GISÈLE BÉRIAULT, JOANNE BEVILACQUA, JOY BISHOP, ALTHEA BLAGROVE, DIANA BLANCHARD-MCALPINE, JOY BOBIER, SHARON BOLAND, JANET BO-LASSEN, LINDA BOND, CHRISTINE BONGERTMAN, SHARON BOOKER, ALINE BOUILLON, KRISTINE BOWES, ANNE BOYLAN CURRIE, LAURETTE BRADEMANN, JOAN BREUER, SUSAN BRIDGES, MORAG BROAD, CONNIE BROWN, NANCY BROWN, SUSAN BUOTT, JUDY BURKE, CINDY BUTLER, KARLA BUTTERFIELD, PAULA CALLAHAN, JAN CAMERON-GIONET, JOANNE CARROTHERS, DIANE CARSON, NINA CASTLE, ESTHER CAVANAGH, BRENDA CEASAR, MAGGIE CHAN, MICHELE CHARLEBOIS, PAUL CHARETTE, KATHLEEN SANDRA CHARETTE, TRUDY CHARRON, ELIZABETH CHASE, AMY CHEN, SHEILA CHRIST, GERALDINE CHRISTOPHER, SHELLEY CHUCKREY, CORY CIAMPA, CHRISTINE CLOUTIER, DANISE COLLINS, LINDA COLLINS, JACQUELINE COMBDEN, KYLA CONNERS, SALLY CONSTANTINE, FAY CORMIER, NORMA CORSTORPHINE, LISA COTA (BOWEN), LOIS COULTIS, TANISHA COULTIS, LYNDA CRAIG, MARTHA CROSS, MARIE CUDA, AGNES G. CUNNINGHAM, TRACY DAKIN, DIANNE DARCH, MIRANDA DARE, LYNN DARROW, CAROLE DAVIDSON, CHARLENE DAVIES (JENNER), CONNIE DAVIS, EMILY DEL CASTILLO, MARIAN DEVINE, JANICE DEYNE, JULIA DHILLON, JUBLEE DHISNA, JOANNE DIETRICH, MELISSA DINGWALL, DEBRA DOBBERTHIEN, JANET DONALDSON, FRANCES DONELY, CHERYL DOTY, MONIQUE DOUGLAS, SUSAN DRYSDALE, ELIZABETH DUHAIME, KIM DUKE, LINDA DULONG, BARBARA DUNCAN, LOUISE DUNCAN, SUSAN DUQUETTE, ANNA T. DURAND, ELAINE DURLING, CHARLENE DYKSTRA, DENISE ELY, DENISE FEAVER, BONNIE JEAN FENTON, ALLISON FERREIRA, ROXANNE K. FERRIER, VANDA FIKUS, PAM FITZSIMONDS, MICHELLE FLEURY, BARBARA FLYNN, DONNA FONTAINE (JONES), JEAN T. FORBES, LEE FRANCZAK, ELIZABETH FRANKLIN, BARBARA FRASER, RUTH FRAYNE, CONNIE FREEMAN, LAURIE FREEMAN, SUSAN FREW, SIMONE GARDEZY, FRANCES GARDINER, JUDY GAUTHIER, NICOLE GAUTHIER-TSCHUPRUK, KARRIE GEVAERT, CHANTAL GIGUERE-CARRIERE, KATIE GIRARD, RHODA GODIN, DZIDRA GOOR (DECEASED), NANCY GRAHAM, JACQUELINE GRATTON, HAZEL GRAY, SUZANNE GREEN, CARRIE GRONAU, JANET GUDEL, SHERRY GUIKAS, BRENDA GUTOSKE, ANGELA HALES, SHEILA HALLS, JEAN HALPENNY, VANESSA HAMBERGER, JAMIE HANLEY, PAUL HARRIS, SUSAN HARRIS, MARLENE HARRISON, BRENDA HART, LESLIE HASSAN, LISA HATCHER, MARIE-JEANNE HAWLEY, JACQUELINE HEALY-LENTZ, PATRICIA HÉBERT, CAROLE HELEY, LARRAINE HENDERSON, MARGARET HENRY, SUSAN HERTZ, JANET HESS, MARILYN HEWITT, SANDRA HIGHGATE, MARIA HILLMAN, YVONNE HODDER, JEAN HODGSON, JOY HOLT, DONNA HOOPER, PAMELA HORNING, JUDY HOWARD, LYNDA G. HUESTIS, MARIAN E. HUMPHREY, CAROLYN HYNES, LISE IRELAND, DALE JAMESON, MAUREEN JOHANSSON, KATHARINE JOHNSON, MARY B. JOHNSON, DONNA JOHNSTON, PAULETTE JOLICOEUR-WELLS, BARBARA KADER-FARBER, KATIE KASSAM, RICHARD KAVANAGH, SHARON KEAN, MARY LYNNE KELLY, MARY LOU KIGHTLEY, GAIL LYNN KIRKPATRICK, CAROL KNOWLES, BETH KOEHLER, LOUISE KOEN, VERONIKA KREAGER, SALLY KRESS, GERI KRIETEMEYER, HIKKA KUOKKANEN, JOYCE KUTNIKOFF, LISA LACOMPTE, SHABINA LADHA, COLLEEN LAFLEUR, JENNIFER LAKE, RUTH LANKTREE, DENISE LAPLANTE, CATHY LAVERY, ANN LAWN, JO-ANNE LAWRENCE, JOANNA LAWSON, MARY ANN LAWTON-BETTS, CHRISTINE LEACOCK, FRANCOISE LEBEL, DONNA LEBLANC, GISÈLE LEBLANC, KAREN LEBLANC, NANCY LEBRETRON, COLLEEN LEDREW, ANNE LEE, CAROLE LEGROS, FLORENCE LESSARD, JOCELYNE LESSARD, MARSHA LETT, MARIELLE LEVESQUE, BERTRANDE LIBERTY, ELIZABETH LINGENFELTER, TIFFANY LINK, KATHLEEN LOGAN, SOPHIA LONG, SHIRLEY E. LOWTHIAN, JANET LUCKETT, JANINE LYNCH, JOAN MACEACHERN, HEATHER MACNEIL, DIANE MACPHERSON, ROSA MADSEN, ARLENE MAHADOO, CAROL ANN MAHAR, SUZANNE MALTAIS, GLENDA MANNING, SUSAN MANNING, JANET MARSH, DARLENE MARSHALL, MICHELLE MATWIY, SHARON MAUNDRELL, SHELLEY MAUNSELL, GAIL MCCARTHY, DIANE MCCLURE, LYNN MCGREGOR, NANCY MCGUIRE, KAREN MCILROY, SANDY MCKENNA, BARBARA MCKINNON, KEN MCKINNON, PAOLA MCKINNON, ANGELINE MCLAREN, FAY MCLAUGHLIN, ADELE MCLEAN, DEBORAH MCLEOD, CATHERINE MCPARLAN, BONNIE MCWHIRTER, MARGARET MEESTER, FARIDA MEGHANI, CAROLE MEGILL-BRESSAN, KAREN MEYER, CHRISTINA MILLER, SUSAN MITCHELL, NARGIS MITHA, ROBERT MORENCY, DAWN MORGAN, VICTORIA MORGENSTERN, CHUCK MORRIS, DOREEN MOURITS AARON, JENNIFER MUGFORD, SHERI-LYNN MUISE, ADRIAN MULHOLLAND, JANE MULLIN, PATRICIA MURPHY, TRACIE MURRAY, CHARLOTTE NEILL, GLORIA NEMETH, RENEE NOAH, BARBARA NOEL, ANNE NOLET, ROSEMARY NORDSTROM, COLLEEN NOYLE, JENNIE PAIUK, CHERI PALIN, FRANCIE PALMER, LYNN PARKER, TISHA PARRIS, FRANCES PAULIN, JOE PELLIZZARO, TAMMY PENNEL, VIKKY PENNEY, IRENE PEPIN, LINE PERIARD, BARB PERKIN, KATHERINE G. PETERS, MICHELE PETRAK, SUSAN PETTERSONE, KELLY PEZZOLA, KAREN PICK, MICHELLE PIEROWAY, SANDRA POLLETT, INESE POPE, ISABELLE PRENAT, DONNA PRICE, MOIRA PRIETO, MAUREEN RANDELL, DOREEN RASMUSSEN, JANISSA READ, ELMA RENDERS, CHARLOTTE RICHARDSON, EILEEN RICHARDSON, DONNA RIDEOUT, DONNA RIDOUT, JAMES (JIM) ROBERTS, HELEN ROBERTSON, DORIS ROBINSON, APRIL RODGERS, PAMELA ROSE, MAJIT ROSS, SHIRLEY ROSS, ANNE ROWE, MARY ROWSELL, KEVIN RUNDLE, HOLLY RURYK, ELEANOR RUTHVEN, JOHN RYAN, TRACEY RYAN, JOAN SAARINEN (MARTIN), KIM SAMSON, KAREN SAUNDERS, KELLY SAUNDERS, ANGELA SCHAFFER, THELMA SCHJERNING, DONNA SCHRANK, DIANE SCHUSTER, CAROL SCHWAB, CATHY SCOTT, ELIZABETH SEABROOK, SUSAN SEARLE, JULIE SECORD, LEANNE SEETO, JEANNE SETLER, JANE SHENKAREK, MARGARET SHEPHERD, MARY JO SHOSTAK, PRISCILLE SIGOUIN, JO ANN SIMMONS, BRENDA SKANDERUP-BERGUM, DIANE SKODAK, BARBARA SMART, CATHERINE SMITH, BRENDA SPARKES, KIMBERLY SPURRELL, LAURA STANFORD-MARTIN, CAROL STANLEY, JUDY STANLEY, JACQUELINE ST-DENIS, CARLA STEINER, HEATHER STEWART, KAREN STEWART, PAULA STEWART, DIANE ST-JACQUES, JOANNE SUMMERS, NANCY SUMMERS, NABIL TARFA, ANDREA TAYLOR, CHERYL TAYLOR, SHIRLEY TEATHER, STEPHANIE TEMPEST, LINDA TEMPLETON, KATHERINE THACKER, BHAWNA THAKRAR, JENNIFER THIBODEAU, VICKI THOMPSON, JO ANN THORP, KELLY TOLE, VERNON TOEWS, JILL TURNOUR (ESPLEN), PATRICIA TYNDALL, TRINA ULRICH, HEATHER VADOVIC, LAURA VAN BUSKIRK, MARGARET VANDAALEN, GWEN VANDERHEYDE, JUDITH VAN HAMOND-BALL, KARI VANKOUGHNETT, DANA VANVLYMEN, ROSE VASTA, JOANNE VELLINGA, MARILYN VERSTRAETE, YASMIN WALJI, BRENDA WALKER, KAREN WALKER, CECIL WATERS, MICHELLE WATSON, DONELLY WATT, MARLENE WEEBER, MARCIA WEIR, ANNETTE WETHERLY, JUDY WHITEWAY, KAREN WIEBE, LYNN WILLIAMS, SHARON WILLIAMS, LORI WILLIAMSON, GWEN WILLS, SHANNA WILSON, SHARON WINTERS, CYNTHIA M. WITTY, MARGARET WOODROW, DEBORAH WORTMAN, COLLEEN WOZNY, ANNETTE WYLIE, ANNA YAN-SANG, BRENDA YOUNG, LEAH YOUNG


and


THE CANADIAN HUMAN RIGHTS COMMISSION

Respondents




REASONS FOR JUDGMENT AND JUDGMENT

I. Introduction
[1] Although there are some differences in the day-to-day responsibilities of Medical Advisors and Medical Adjudicators involved in the assessment of applications for Canada Pension Plan disability benefits, the “core function” of each position is the same. Both positions require the application of professional knowledge and expertise in determining applicants’ eligibility for benefits.

[2] Medical Advisors are medical doctors. Their positions are classified within the Health Services Group in the Public Service of Canada classification scheme, and they are compensated accordingly. A significant majority of Medical Advisors are male.

[3] Medical Adjudicators are registered nurses, and the vast majority of them are female. Their positions are classified within the Public Service’s Program and Administrative Services Group. This affects the compensation and benefits to which they are entitled.
[4] The human rights complaint filed by Ruth Walden and over 400 other complainants asks why it is that when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program.

[5] No reasonable, non-discriminatory answer to this question was provided to the Canadian Human Rights Tribunal by Social Development Canada, the Treasury Board of Canada and the Public Service Human Resources Management Agency of Canada (collectively “the Government of Canada”). As a consequence, the Tribunal found that the Government’s refusal to recognize the professional nature of the work performed by Medical Adjudicators in a manner proportionate to the professional recognition accorded to the work of Medical Advisors amounted to a discriminatory practice within the meaning of both sections 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.

[6] This is an application for judicial review of that decision. For the reasons that follow, I have concluded that the Tribunal did not err as alleged by the Government, and that its decision was reasonable. As a consequence, the application for judicial review will be dismissed.


II. Background

[7] In order to appreciate the Government of Canada’s arguments, it is necessary to have some understanding of the roles and responsibilities of both Medical Adjudicators and Medical Advisors. It should be noted that the Government does not challenge any of the Tribunal’s factual findings in this regard. What it takes issue with is the analysis flowing from these findings, and the conclusions arrived at by the Tribunal.

[8] The Canada Pension Plan came into being in 1966. The Plan provides various forms of benefits to contributors, including disability benefits. Individuals are eligible for disability benefits if they have contributed to the Plan for at least five years, and have a “severe and prolonged mental or physical disability”: see paragraph 42(2)(a) of the Canada Pension Plan. R.S.C. 1985, c. C-8.

[9] Because five years of contributions were required before an application for disability benefits could be brought, it was not until 1971 that medical doctors were hired to assess claimants’ eligibility for benefits. As a result of the high volume of applications, these doctors were unable to process all of the applications in a timely manner, and a backlog soon developed. In 1972, registered nurses were hired to work with the doctors in assessing applicants’ eligibility for disability benefits.

[10] All of these individuals originally worked for Health and Welfare Canada. As the allocation of responsibilities between Ministries has changed over the years, responsibility for the administration of the Canada Pension Plan shifted first to Human Resources Development Canada, and then to Social Development Canada.

[11] The evidence before the Tribunal was that approximately 80% of the medical doctors involved in the determination of CPP disability claims are male. In contrast, 95% of the nurses involved in the assessment of applications for disability benefits are female.
[12] Whether the assessment of a claim for disability benefits is carried out by a doctor or by a nurse, medical knowledge on the part of the assessor is required to understand and evaluate the documentation submitted in support of the application. Neither Medical Advisors nor Medical Adjudicators ever provide any direct care to patients.

[13] As the Tribunal noted, the classification of positions within the Public Service of Canada is important, as it determines the professional recognition, pay, benefits, and opportunities for continuing education and career advancement that employees will receive.

[14] In determining how a position should be classified within the Public Service system, regard is had to the primary function of the position in question. Positions are first allocated to an Occupational Group. Occupational Groups are comprised of jobs that are grouped together on the basis that they involve common duties or similar work. Occupational Groups are sub-divided into Classification Standards that reflect the specific type of work performed.

[15] The Health Services Occupational Group is defined as including “positions that involve the application of medical or nursing knowledge (among other professional specialties) to the safety, and physical and mental wellbeing of people”. The Health Services (SH) Group includes a Nursing (NU) Classification Standard and a Medicine (MD) Classification Standard, among others.

[16] The Program and Administrative Services (PA) Occupational Group includes the Programme Administration (PM) Classification Standard, among many others. This Occupational Group is made up of positions that “primarily involve the planning, development, delivery or management of administrative and federal government programs to the public”.

[17] Doctors assessing applications for CPP disability benefits are known as “Medical Advisors” and are classified as MD’s within the Health Services Group. Nurses assessing such applications are known as “Medical Adjudicators” and are classified within the Program and Administrative Services Group.

[18] According to the Tribunal, Medical Advisors have always been part of the Health Services Group because “the definition of ‘medical officer’ has historically included positions that have, as their primary purpose, responsibility for the assessment of medical fitness for the determination of disability and other federal government benefits”.

[19] In contrast, Medical Adjudicators have always been classified as “PM’s” within the Program and Administrative Services Group. The Tribunal found that positions within the PA Group “do not involve the application of a comprehensive knowledge of professional specialties such as nursing or medicine”.

[20] Medical Adjudicators have long felt that they have been treated unfairly in this regard. From 1988 until shortly before the Tribunal hearing, Medical Adjudicators had repeatedly sought to be recognized as health professionals by having their positions reclassified as part of the Nursing Classification Standard within the Health Services Group, without success. While classification reviews were carried out by the Treasury Board and the Public Service Human Resources Management Agency of Canada, each review confirmed that Medical Adjudicators were properly classified within the PA group. The Public Service Labour Relations Board (or “PSLRB”) came to a similar conclusion in a 2006 decision.


III. The Human Rights Complaints

[21] Ruth Walden filed her human rights complaint with the Canadian Human Rights Commission in 2004. Her complaint alleged that she was being subjected to discrimination on the basis of her sex, contrary to the provisions of sections 7 and 10 of the Canadian Human Rights Act. Copies of the relevant statutory provisions are attached as an appendix to these reasons.

[22] Over the next three years, more than 400 other Medical Adjudicators joined with Ms. Walden in the complaint.

[23] A review of Ms. Walden’s complaint form discloses that the focus of her complaint is on the classification issue.

[24] Ms. Walden asserts that “CPP doctors have always been recognized as medical professionals under the federal job classification scheme”, and are compensated accordingly. In contrast, Ms. Walden says that “CPP nurses have never been recognized as health care professionals by our employer. We are called Medical Adjudicators or Service Delivery Specialists but are classified as Program Managers/Program Administrators (PM3)”. According to Ms. Walden “[t]his classification does not recognize our status as Registered Nurses” and results in Medical Adjudicators receiving lower pay than that received by other nurses working for the federal government, and also provides them less in the way of professional development opportunities.

[25] Ms. Walden’s complaint discusses the work performed by Medical Advisors and Medical Adjudicators over the years, and concludes with the statement that “[p]ut simply, my employer is saying that when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program”. According to Ms. Walden, treating two groups of health care professionals differently when they are employed for the same purpose amounts to sex discrimination.


IV. The Tribunal’s Decision

[26] In a lengthy and detailed decision, the Tribunal examined the nature of the work performed by both Medical Advisors and Medical Adjudicators since the inception of the CPP, as the work performed by each group evolved over time.

a) The Tribunal’s Findings with Respect to the Establishment of a Prima Facie Case
[27] The Tribunal concluded that the complainants had established a prima facie case that the work that Medical Adjudicators have performed since1972 was the same as or substantially similar to the work performed by Medical Advisors. According to the Tribunal, the “core function” of both types of position is the application of professional knowledge to determine eligibility for disability benefits under the Canada Pension Plan.
[28] The Tribunal further concluded that the Medical Adjudicators had been denied professional recognition as health professionals by being classified as Program Administrators. This resulted in the denial of salary and benefits, including vacation allowance, payment of professional fees, educational and training opportunities and career advancement that would have flowed from the classification of Medical Adjudicator positions within the Health Services Group.

[29] Given the statistical evidence of strong gender predominance within the Medical Adjudicator group, the Tribunal found that the classification of Medical Adjudicators within the Program and Administrative Services Group rather than the Health Services Group negatively affected a disproportionate number of women.

[30] According to the Tribunal, these findings were sufficient to establish a prima facie case of discrimination under the provisions of section 7 of the Canadian Human Rights Act.

[31] The Tribunal also found that the complainants had established a prima facie case of discrimination under section 10 of the Act. That is, the Tribunal found that the Government of Canada had, since 1972, pursued a practice of treating Medical Advisors and Medical Adjudicators as though they were doing different work, and classifying them accordingly, when they were doing substantially similar work. Because this practice had a disproportionate impact on women, this was sufficient to establish the connection between the impugned practice and the prohibited ground of discrimination.

[32] As a consequence, the Tribunal found that the burden shifted to the Government of Canada to provide a reasonable, non-discriminatory explanation for its conduct.

b) The Tribunal’s Consideration of the Government’s Explanation
[33] The Tribunal considered the evidence adduced by the Government of Canada with respect to the similarities and differences between the Medical Adjudicator and Medical Advisor positions. While the Tribunal accepted that there were some differences between the two types of positions, these differences were not, in the Tribunal’s view, extensive enough to explain the wide disparity in treatment between Medical Advisors and Medical Adjudicators.

[34] In particular, the Tribunal found that the Government of Canada failed to provide a reasonable, non-discriminatory explanation as to why it is that Medical Advisors are recognized as health professionals, and compensated accordingly, when their primary function is to make eligibility determinations, and yet, when Medical Adjudicators perform the same primary function, they are designated as Program Administrators and are paid half the salary of Medical Advisors.

[35] The Tribunal rejected the Government’s contention that the 2006 decision of the PSLRB holding that Medical Adjudicator positions did not belong in the Health Services Group provided a reasonable explanation for the differential treatment.

[36] The PSLRB found that although Medical Adjudicators used their medical knowledge in assessing applications for CPP disability benefits, they did not provide direct health care to applicants. As a consequence, the Board found that Medical Adjudicators were more properly classified as Program Administrators.

[37] The Tribunal observed that the PSLRB was not called upon to compare the classification of Medical Adjudicators to the classification of Medical Advisors, nor did it consider the classification issue in the context of the Canadian Human Rights Act. As a consequence, the Tribunal concluded that the PSLRB decision was of limited assistance in deciding the issue before it.

[38] The Tribunal did not accept the explanation offered by Patricia Power, the Acting Director General of Classification, Policy and Strategy at the Public Service Human Resources Management Agency of Canada, for the differences in the way that Medical Advisor and Medical Adjudicator positions were classified.

[39] Ms. Power testified that Medical Advisors are included within the Health Services Group because they meet the Health Services Group Definition and the Medicine Classification Standard. Medical Adjudicators are not included within the Health Services Group because they do not meet the Health Services Group Definition or the Nursing Classification Standard.

[40] According to Ms. Power, in order to be included within the Health Services Group Definition, a position must meet the “umbrella definition” for the Health Services Group Definition, and then fall within an “inclusion statement” for the MD or the NU Classification Standards.

[41] The umbrella definition for the Health Services Group provides that the Group is comprised of positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of medicine and nursing (among others) to the safety and physical and mental well-being of people.

[42] Ms. Power stated that Medical Advisor positions meet the umbrella definition for the Health Services Group, while Medical Adjudicator positions do not. Ms. Power explained that this is because medical adjudication does not involve the use of nursing knowledge to provide direct patient care.

[43] However, the Tribunal observed that Medical Advisors also do not use their medical knowledge to provide direct patient care in a clinical setting. As a result, the Tribunal found that if Medical Adjudicators do not meet the umbrella definition of the Health Services Group because they do not provide direct patient care, then neither do Medical Advisors.

[44] Ms. Power explained that Medical Advisors come within the MD Classification Standard within the Health Services Group because these positions match one of the “inclusion statements” for that Standard. That is, “inclusion statement 5” allows for the inclusion of positions within the MD Classification Standard that involve “the assessment of medical fitness for the determination of disability and other federal government benefits …” It appears that there is no comparable inclusion statement for the NU classification within the Health Services Group.

[45] Such an inclusion statement was incorporated into a new definition of the Health Services Group during the Universal Classification System process in 1999. Ms. Power testified that had this new definition been applied to Medical Adjudicator positions, it would have allowed Medical Adjudicators to be classified within the Health Services Group.

[46] However, the new definition was subsequently modified and inclusion statement 5 was not applied to the Adjudicators because it would have meant that Medical Adjudicators would no longer be part of the bargaining unit represented by the Public Service Alliance of Canada, but would instead be represented by the Professional Institute of the Public Service of Canada.

[47] Ms. Power explained that in 1993, Treasury Board had been mandated under the Public Service Reform Act to reduce the number of Occupational Groups within the Public Service. One of the conditions set out in the legislation was that the reduction in Groups was not to result in changes to bargaining unit affiliation. To preserve bargaining unit affiliation, inclusion 5 was explicitly excluded from the NU Classification Standard, and was included in the MD Standard.

[48] Ms. Power conceded that if the 1999 UCS process introduced or re-introduced gender bias into the classification process, it would have been Treasury Board’s responsibility to re-define the Group Definitions and Classification Standards in order to remove the bias. She also acknowledged that Treasury Board has the exclusive authority to determine classifications in accordance with section 7 of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2, and that the approval of the affected bargaining agents is not required to make changes to the Classification Standards.
[49] The Tribunal found that the need for bargaining agent approval was nevertheless part of the explanation provided by Treasury Board and the Public Service Human Resources Management Agency of Canada for refusing to change the NU Classification Standard or the Health Services Occupational Group definition.

[50] That is, in 2004, Social Development Canada presented a “Business Case” seeking the reclassification of the Medical Adjudicator positions into a proposed new sub-group to be created within the NU Classification Standard in the Health Services Group, recognizing that the work performed by Medical Adjudicators falls within the scope of nursing practice. Part of the response of Treasury Board and the Public Service Human Resources Management Agency of Canada was that such a change could only occur with the support of the affected bargaining agents.

[51] This response reiterated that the primary purpose of Medical Adjudicator positions was not the application of nursing knowledge to the safety and physical well-being of people or the assessment of medical fitness, but was rather the administration of a government program.

[52] The Tribunal found as a fact that if Medical Advisors are considered to be applying their medical knowledge to the safety and physical well-being of people and assessing medical fitness in determining eligibility for benefits for the purposes of determining their classification, then so too should Medical Adjudicators. As a consequence, the Tribunal found that the Government of Canada had failed to provide a reasonable and non-discriminatory explanation for the differential application of classification principles as between Medical Advisors and Adjudicators.
[53] The Tribunal thus held that the Government had failed to explain its refusal to recognize the professional nature of work done by a predominantly female group of workers performing essentially the same core function as a predominantly male group of workers whose work does receive professional recognition.

[54] Given that the Government failed to adduce any evidence relating to the cost of accommodating the Medical Adjudicators, the Tribunal also found that a bona fide occupational requirement had not been established.

c) The Tribunal’s Conclusion on Liability
[55] The Tribunal concluded that the complainants had established that the Government of Canada’s refusal, since March of 1978, to recognize the professional nature of the work performed by Medical Adjudicators in a manner proportionate to the professional recognition accorded to the work of Medical Advisors, constituted a discriminatory practice within the meaning of both sections 7 and 10 of the Canadian Human Rights Act.

[56] According to the Tribunal, the effect of this discriminatory practice was to deprive Medical Adjudicators of professional recognition and remuneration commensurate with their qualifications. The Tribunal also found that Medical Adjudicators were denied the payment of their licensing fees, and the training and career advancement opportunities that were provided to Medical Advisors.

[57] The Tribunal did not decide the issue of remedy at the time that it made its liability finding, but remained seized of the matter in the event that the parties were unable to resolve the issue between them. I am advised that the Tribunal has since rendered additional remedial decisions. These decisions are the subject of applications for judicial review and are not before me at this time.

[58] With this understanding of the matters giving rise to this application, I will next consider the issues raised by the Government, commencing with the Government’s arguments regarding what it says are the implications of the “reformulation” of the complaint by the complainants and the Commission.

V. The “Reformulation” of the Complaint

[59] The Government asserts that Medical Adjudicators have historically sought to be classified as part of the Nursing Classification Standard within the Health Services Group. It was only when the complainants and the Commission delivered their Statement of Particulars in 2007 that the focus of the case changed to suggest that Medical Adjudicators do the same work as Medical Advisors, and the differential treatment between the two groups therefore amounts to discrimination.

[60] It is very clear from the wording of Ms. Walden’s human rights complaint that the fundamental basis for her complaint is her claim that although Medical Advisors and Medical Adjudicators perform similar functions, Medical Adjudicators have always been denied the professional recognition accorded to Medical Advisors, as well as the compensation and benefits to which they believe they are entitled.
[61] It is also very clear from the complaint form that the complainants are of the view that the source of this adverse differential treatment lies in the application of the Government’s classification scheme. This is illustrated by the summary provided at the conclusion of the complaint where Ms. Walden states that “[p]ut simply, my employer is saying that when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program”.

[62] I will revisit this issue when dealing with the question of whether the Tribunal erred in finding that liability should be assessed as of March of 1978. At this point, I would simply observe that while I agree that the Statement of Particulars could have been expressed more clearly as it related to the classification issue, there is no question but that the Government understood the nature of the allegations against it, and the case that it had to meet.

[63] I note from a review of the opening statements of counsel for both the Commission and for the complainants that their position before the Tribunal was that although the Government classification scheme was neutral on its face, it was being applied to Medical Adjudicators in a discriminatory fashion. It was also clearly asserted that the work performed by Medical Advisors was the same as that done by Medical Adjudicators: see the transcript of Tribunal hearing at pages 36-40 and 55-59. No concern was raised by counsel for the Government at the commencement of the Tribunal hearing that this represented a change in the position of the complainants and the Commission, or that he was taken by surprise in any way.

[64] Counsel for the Government confirmed that this was not a situation where it was prejudiced in some way by a change in the position of the complainants and the Commission, or that different evidence could have been led if it had properly understood the nature of the claim. In response to questions from the Court, counsel expressly confirmed that the issue was not one of fairness, and that the Government understood the nature of the allegations and the case that it had to meet.

[65] Rather, as I understand counsel’s concern, it is that the Tribunal’s analysis is flawed, and does not properly respond to the issues that it was called upon to decide. I will deal with this allegation as I examine each of the issues raised by the Government.


VI. Did the Tribunal Err in its Choice of Comparator Group?

[66] The Government argues that in identifying an appropriate comparator group for the purposes of this complaint, the Tribunal should have had regard to the level of skill, effort and responsibility involved in the position of female Medical Adjudicator and the comparator group. In this regard, the Government cites the decision of the British Columbia Human Rights Tribunal in Prpich v. Pacific Shores Nature Resort Ltd., 2001 BCHRT 26.

[67] The Government says that in carrying out its discrimination analysis, the Tribunal should properly have compared the situation of female Medical Adjudicators to that of male Medical Adjudicators, as these are the two groups actually performing similar work, requiring comparable levels of skill, effort and responsibility.

[68] The Government further contends that the fact that these two groups have always been treated in an identical fashion highlights the fact that the complainants are not suffering from gender-based adverse differential treatment. As a result, the complainants failed to establish a prima facie case of discrimination.

[69] The Tribunal rejected this argument as unreasonable, holding that male Medical Adjudicators are not a separate group, but are part of the predominantly female group of Medical Adjudicators. By virtue of their membership in this group, male Medical Adjudicators are themselves subject to any potential discriminatory difference in treatment vis-à-vis Medical Advisors.

[70] According to the Tribunal, a comparison of male Medical Adjudicators’ work with that of the female Medical Adjudicators would also not be a meaningful indicator of equal treatment of the overwhelmingly female population in the group. The Tribunal observed that the complainants alleged that their inferior working conditions were a function of the strong gender predominance of their occupational group. This allegation could not be properly tested by examining the working conditions of the small male minority within their ranks.


a) What Standard of Review Applies to the Tribunal’s Choice of Comparator Group?

[71] The first question to be decided in considering the Government’s argument is the appropriate standard of review to be applied to the Tribunal’s choice of Medical Advisors as the appropriate comparator group.
[72] The Government submits that the choice of comparator group is a question of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” as contemplated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 60. As a consequence, the Government says that this aspect of the Tribunal’s decision should be reviewed against the standard of correctness.

[73] In contrast, the Canadian Human Rights Commission argues that the Tribunal’s choice of comparator group should be reviewed against the standard of reasonableness. The complainants have made no submissions in this regard.

[74] The determination of the relevant comparator group in a specific case depends heavily on the facts of the particular case at hand. It does not involve a question of law of central importance to the legal system as a whole.

[75] Nor is the choice of comparator group a matter outside of the Tribunal’s specialized area of expertise. Indeed, the Supreme Court of Canada has determined that the identification of the relevant comparator in a given case is a core function that lies at the very heart of the Tribunal’s expertise: Canada (Human Rights Commission) v. Canadian Airlines International Ltd., 2006 SCC 1, [2006] 1 S.C.R. 3 at para. 42. As such, a high degree of deference is owed to the Tribunal’s finding in this regard: Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2010] F.C.J. No. 272 at para. 182, per Evans J.A., dissenting, but not on this point.

[76] In reviewing a decision against the reasonableness standard, the Court must consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law: see Dunsmuir at para. 47 and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.

[77] With this in mind, I will next consider whether the Tribunal’s choice of Medical Advisors as the relevant comparator group was reasonable.

b) Was the Tribunal’s Choice of Comparator Group Reasonable?

[78] Equality is an inherently comparative concept. In order to determine whether there has been adverse differential treatment on the basis of a proscribed ground, it is therefore necessary to compare the situation of the complainant group with that of a different group.

[79] A review of Ms. Walden’s complaint form discloses that the essence of the complaint is the allegedly inferior treatment of Medical Adjudicators - a female-dominated occupational group - relative to the treatment accorded to a different, male-dominated occupational group, namely Medical Advisors. In particular, Ms. Walden and the other complainants object to the lack of professional recognition accorded to Medical Adjudicators relative to that accorded to Medical Advisors under the Federal Public Service job classification scheme.

[80] While the issues of classification and compensation are undoubtedly intertwined, this is not simply a wage discrimination case. While the complainants are undoubtedly concerned about their level of compensation and the extent of their employment benefits, they have also complained of the professional recognition allegedly denied to Medical Adjudicators as a result of their exclusion from the Health Services Group.

[81] The complaint is not about preferential treatment allegedly accorded to male Medical Adjudicators vis-à-vis female Medical Adjudicators. Indeed, any adverse differential treatment suffered by Medical Adjudicators relative to Medical Advisors would be experienced equally by both male and female Medical Adjudicators. As Justice Evans observed in his dissenting opinion in Canada Post, above, it is entirely possible to have males who are disadvantaged by being members of a female-dominated occupational group: at para. 185.

[82] As a consequence, comparing the situation of female Medical Adjudicators to that of male Medical Adjudicators would not allow for a meaningful examination of the fundamental basis for the complaint, and would thus make little sense. The Tribunal’s identification of Medical Advisors as the appropriate comparator group was reasonable.

[83] I do not agree with the Government that the fact that there may be differences in some of the day-to-day duties and responsibilities of Medical Advisors and Medical Adjudicators necessarily means that Medical Advisors cannot be the appropriate comparator group for the purposes of the Tribunal’s discrimination analysis.
[84] The evidence before the Tribunal was that positions are allocated to an Occupational Group having regard to the primary function of the position in question. According to Ms. Power, positions within the Health Services Group involve the application of a comprehensive knowledge of professional specialties in the fields of medicine or nursing to the safety and physical and mental well-being of people. As a result, an examination of the fundamental nature or primary or “core” function of the work performed by Medical Adjudicators and Medical Advisors was appropriate.

[85] It was open to the Government to adduce evidence before the Tribunal as to the differences between the work performed by Medical Adjudicators and that carried out by Medical Advisors, as it in fact did. Evidence of this nature could, if accepted by the Tribunal, potentially provide a reasonable and non-discriminatory explanation for the differences in treatment between the two groups. It does not, however, mean that Medical Advisors could not be the appropriate comparator group for the purposes of the Tribunal’s discrimination analysis.

VII. Did the Tribunal Err in Finding that Statistical Evidence of Professional Segregation is Sufficient to Establish a Prima Facie Case of Sex Discrimination Under Sections 7 and 10 of the CHRA?

[86] The Government’s next argument is that the Tribunal erred in allegedly finding that statistical evidence of gender-based professional segregation is sufficient to establish a prima facie case of sex discrimination. Before addressing this issue, it is once again necessary to identify the appropriate standard of review to be applied to this aspect of the Tribunal’s decision.




a) What Standard of Review Applies to this Aspect of the Tribunal’s Decision?

[87] According to the Government, this issue also involves a discrete and specific question of law, with the result that this aspect of the Tribunal’s decision should be reviewed against the standard of correctness.

[88] The Canadian Human Rights Commission once again argues that the reasonableness standard should be applied to this aspect of the Tribunal’s decision, and the complainants have made no submissions in this regard.

[89] There is pre-Dunsmuir jurisprudence establishing that the formulation of the test for a prima facie case is a question of law, and is reviewable against the standard of correctness: Morris v. Canada (Canadian Armed Forces), 2005 FCA 154, 334 N.R. 316 at para. 23.

[90] In the present case, the Tribunal identified the test for a prima facie case in paragraphs 5, 7 and 38 of its decision. Although it did not refer to the case by name, the test identified by the Tribunal is that articulated by the Supreme Court of Canada in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 [O’Malley].

[91] That is, a prima facie case of discrimination is one that covers the allegations made, and which, if believed, is complete and sufficient for a decision in favour of the complainant, in the absence of a reasonable answer from the respondent: O’Malley at para. 28. Once a prima facie case of discrimination has been established by a complainant, the burden will then shift to the respondent to provide a reasonable explanation for the conduct in issue.

[92] What the Government takes issue with here is not the test applied by the Tribunal, but rather the Tribunal’s finding that a prima facie case had been established under both sections 7 and 10 of the Canadian Human Rights Act.

[93] Whether there was sufficient evidence before the Tribunal to constitute a prima facie case involves the application of the legal test to facts of this specific case. As a question of mixed fact and law, the Tribunal’s finding in this regard is reviewable on the standard of reasonableness: Morris at para. 33.



b) Did the Tribunal Err in Finding that a Prima Facie Case had been Established Under Sections 7 and 10 of the Canadian Human Rights Act?

[94] According to the Government, the Tribunal erred in finding that the complainants had established a prima facie case of sex-based discrimination under sections 7 and 10 of the Canadian Human Rights Act simply by showing that Medical Adjudicators are predominantly female whereas Medical Advisors are predominantly male.

[95] In so doing, the Government says the Tribunal erred by treating Medical Adjudicators’ complaints as allegations of systemic discrimination which would be more properly dealt with under the pay equity provisions contained in section 11 of the Act.
[96] In order to appreciate the Government’s argument, it is first necessary to have some understanding of the similarities and differences between complaints under sections 7 and 10 of the Act, and pay equity complaints brought under section 11 of the Act.

[97] Subsection 7(b) of the Canadian Human Rights Act makes it a discriminatory practice to differentiate adversely between individuals in employment on the basis of a prohibited ground of discrimination. Subsection 10(a) of the Act makes it a discriminatory practice to establish or pursue policies or practices that deprive or tend to deprive an individual or class of individuals of employment opportunities on the basis of a prohibited ground.

[98] Section 11 of the Act is intended to address systemic discrimination resulting from the long-standing societal undervaluation of work performed by female-dominated occupational groups. To this end, the scope of protection offered by section 11 of the Act “is delineated by the concept of ‘equal value’”: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879, 62 D.L.R. (4th) 385 (S.E.P.Q.A.), at para. 80, per L’Heureux-Dubé, J. dissenting, but not on this point.

[99] That is, section 11 of the Act allows for the comparison of very different types of work being performed by groups of employees working within the same establishment, in order to determine whether there has been wage discrimination. This is done by measuring the value of the work performed by each group against certain specified criteria, namely skill, effort, responsibility and working conditions. The Equal Wage Guidelines, 1986, SOR/86-1082, issued by the Canadian Human Rights Commission in accordance with subsection 27(2) of the Act provide additional assistance in assessing the relative value of different types of jobs.

[100] As Justice Evans observed in Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146, 176 F.T.R. 161, the nature of systemic discrimination is such that it is often difficult to prove that the disadvantaged position of many members of particular groups in the workplace is based on the attributes associated with the groups to which they belong: at para. 151.

[101] Justice Evans went on to note that section 11 of the Canadian Human Rights Act addresses the problem of proof by creating a rebuttable presumption of gender-based discrimination when it can be shown that men and women working in the same establishment are paid different wages for work of equal value: at para. 152. See also Canada Post Corp. v. Public Service Alliance of Canada, 2008 FC 223, [2008] 4 F.C.R. 648 at paras. 227-228.

[102] According to the Government, the Tribunal erred in this case by importing the section 11 presumption into its analysis in support of its finding that a prima facie case of discrimination had been established, without first going through the rigours of a full section 11 pay equity analysis.

[103] That is, the Government asserts that the Tribunal presumed that any differences in the treatment of Medical Adjudicators relative to that accorded to Medical Advisors was a result of the fact that the Medical Adjudicator group was predominantly composed of women.

[104] The Government says that in the absence of evidence to the contrary, any differential treatment as between Medical Adjudicators and Medical Advisors “would simply reflect prevailing assumptions regarding the relative worth of nurses’ and doctors’ work. Doctors are assumed to have superior knowledge, and more onerous tasks and responsibilities compared to nurses regardless of whether they are men or women”: see the Government’s memorandum of fact and law at para. 68.

[105] As the Federal Court of Appeal observed in Morris, the legal definition of a prima facie case does not require the complainant to adduce any particular type of evidence to prove the facts necessary to establish that he or she was the victim of a discriminatory practice within the meaning of the Canadian Human Rights Act: see para. 27.

[106] Indeed, the Federal Court of Appeal has specifically rejected the appropriateness of having a precise formula or test for the establishment of a prima facie case, noting that a flexible legal test is better suited to advance the broad purpose underlying the Canadian Human Rights Act. The Court noted that “[d]iscrimination takes new and subtle forms” and that it was “now recognized that comparative evidence of discrimination comes in many more forms than the particular one identified in [the jurisprudence]”: Morris at para. 28.

[107] Moreover, the determination of what type of evidence will establish a prima facie case in a given set of circumstances is a matter more within the expertise of the Canadian Human Rights Tribunal than that of the Court: Morris at para. 29.

[108] The Government’s argument in this case appears to be based upon the discussion appearing at paragraphs 38-41 of the Tribunal’s reasons. Of particular significance is the statement in paragraph 39 that “[s]tatistical evidence that apparently neutral conduct negatively affects a disproportionate number of members of a protected group is sufficient to establish a prima facie case under sections 7 and 10”.

[109] I agree with the Government that statistical evidence of professional occupational segregation, by itself, is not sufficient to establish a prima facie case of sex discrimination under either section 7 or section 10 of the Canadian Human Rights Act. Indeed, the Canadian Human Rights Commission concedes as much at paragraph 61 of its memorandum of fact and law, although the complainants do not agree.

[110] That is, a prima facie case of sex-based discrimination under sections 7 and 10 of the Act would not be established simply by demonstrating, for example, that the majority of secretaries working in a military hospital are female and the majority of neurosurgeons are male. Without more, this demonstrates nothing more than the existence of gendered occupational segregation.

[111] I would also note that statistical evidence of professional occupational segregation, would not, by itself, be sufficient to establish a prima facie case of wage discrimination under section 11 of the Act, in the absence of other evidence establishing the equal value of the work under consideration: S.E.P.Q.A. at para. 82.

[112] However, when one examines the Tribunal’s reasons, it is clear that it did not rely solely on the statistical evidence of occupational segregation in coming to its conclusion that a prima facie case of discrimination had been established both under section 7 and section 10 of the Act.

[113] Before discussing the other evidence considered by the Tribunal which supported its prima facie case findings, I will start by addressing the significance of the statistical evidence in this case. It will be recalled that this evidence demonstrated that the vast majority (95%) of Medical Adjudicators are female and that a significant majority (80%) of Medical Advisors are male.

[114] As Justice Richard observed in Canada (Canadian Human Rights Commission) v. Canada (Department of National Health and Welfare) (re Chopra), (1998), 146 F.T.R. 106, 79 A.C.W.S. (3d) 126, statistical evidence can be useful in human rights complaints. Such evidence may constitute circumstantial evidence from which inferences of discriminatory conduct may be drawn: see para. 21, citing Blake v. Minister of Correctional Services (1984), 5 C.H.R.R. D/2417 (Ont.), which was in turn citing Davis v. Califano, 613 F. 2d 957 (1979) at 962.

[115] Statistical evidence can also be an important tool for placing seemingly inoffensive employment practices in their proper perspective: Chopra at para. 20, citing Senter v. General Motors Corp., 532 F. 2d 511 (1976).

[116] Indeed, the Supreme Court of Canada has observed that statistical evidence of professional segregation “is a most precious tool in uncovering adverse discrimination” under sections 7 and 10 of the Canadian Human Rights Act: S.E.P.Q.A. at para. 80, per L’Heureux-Dubé, J. dissenting, but not on this point.

[117] That said, the evidence relied upon by the Tribunal in finding that a prima facie case had been established demonstrated more than the mere fact that individuals occupying positions as Medical Advisors are predominantly male, whereas the vast majority of those working as Medical Adjudicators are female.

[118] I will return to consider the evidence adduced by both sides in relation to the similarities and differences between the work of Medical Advisors and Medical Adjudicators in the next section of these reasons. Suffice it to say that there was considerable evidence put before the Tribunal by the complainants with respect to the similarities in the nature of the work performed by Medical Adjudicators and Medical Advisors.

[119] This evidence was carefully examined by the Tribunal, which found that while there were some differences in the work performed by the two groups, the “core function” of both Medical Adjudicator and Medical Advisor positions involved the application of professional knowledge to the determination of eligibility for CPP disability benefits: see Tribunal decision at para. 11.

[120] The Government has not challenged this finding.

[121] It was not disputed that Medical Advisors have always been recognized as health professionals under the Public Service classification scheme, whereas Medical Adjudicators have not. In this regard, the Tribunal found that application of Medical Advisors’ medical knowledge in the determination of eligibility for CPP benefits has always been reflected in their classification as MD’s within the Health Services Group.

[122] In contrast, the application of the Medical Adjudicators’ knowledge and expertise has never been reflected in their classification as program administrators within the Program Administration Group: see Tribunal decision at para. 75.

[123] It was also not disputed that health professionals (including Medical Advisors) within the Health Services Group have always received more vacation allowance than Medical Adjudicators. Medical Adjudicators also receive less in the way of pay and other employment benefits.

[124] All of this evidence was carefully considered by the Tribunal in coming to its conclusion that a prima facie case of discrimination under section 7 of the Canadian Human Rights Act had been established: see the Tribunal decision at paras. 42-81.

[125] In light of the above, I am satisfied that the Tribunal’s conclusion that the evidence adduced by the complainants, including, but not limited to the statistical evidence of gendered occupational segregation, was sufficient to establish a prima facie case of discrimination under section 7 of the Canadian Human Rights Act was one that was reasonably open to it on the record before it.
[126] Similarly, the Tribunal did not rely solely on the statistical evidence of occupational segregation in coming to the conclusion that a prima facie case of discrimination under section 10 of the Act had been established.

[127] The Tribunal found that since 1972, the Government had pursued a practice of treating Medical Advisors and Medical Adjudicators as though they were doing different work, and classifying them accordingly. However, there was evidence before the Tribunal showing that the core function of the two positions was the same, and that the work performed by Medical Adjudicators was the same as, or substantially similar to the work done by the Medical Advisors.

[128] All of this evidence was considered by the Tribunal in determining whether a prima facie case of discrimination under section 10 of the Act had been made out: see the Tribunal decision at paras. 82-101.

[129] Moreover, the statistical evidence before the Tribunal showed that the Government’s practice had a disproportionate adverse effect on women, as a result of the predominance of women in nursing generally, and in Medical Adjudicator positions in particular.

[130] In dealing with allegations of discrimination such as those in issue in this case, it is not necessary for the complainants to demonstrate that the Government had a discriminatory intent pursuing a particular policy or practice in order for a prima facie case of discrimination under section 10 of the Act to be made out: see, for example, C.N.R. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 at paras. 34 and 40 [“Action Travail des Femmes”].

[131] That is, it will be sufficient if the complainants can show that the effect of the Government’s policy or practice is to withhold or limit access to opportunities, benefits, or advantages to one group that are made available to another: see O’Malley, above, at para. 12, and Law Society British Columbia v. Andrews, [1989] 1 S.C.R. 143, 91 N.R. 255 at para. 37.

[132] The evidence before the Tribunal established that the unintended effect of a Government practice was to expose a disproportionate number of women to unfavourable treatment by depriving them of employment opportunities that are available to men who are performing the same core function, and the same or substantially similar work. This was sufficient to establish a prima facie case of discrimination under section 10 of the Act, thereby shifting the burden to the Government of Canada to provide a reasonable explanation for the conduct in question.

[133] Before leaving this issue, reference should be made to the Government’s argument that in the absence of evidence to the contrary, any differential treatment as between Medical Adjudicators and Medical Advisors would simply reflect prevailing assumptions regarding the relative worth of nurses’ and doctors’ work.

[134] With all due respect, it is these sorts of “prevailing assumptions” regarding the relative worth of work performed by male-dominated and female-dominated occupations that are precisely what the Canadian Human Rights Act seeks to address through provisions such as sections 7, 10 and 11: see, for example, Action Travail des Femmes, at para. 34, and Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 F.C. 789 (F.C.A.) at paras. 11-16 [“NPF”].


VIII. Did the Tribunal Make Inconsistent Findings Regarding the Similarity of Work?

[135] The Government submits that the Tribunal’s finding that Medical Adjudicators and Medical Advisors do the same or substantially similar work was inconsistent with its finding that Medical Advisors’ work differed from that of Medical Adjudicators in certain respects. According to the Government, either the two positions are substantially similar, or they are not because there are important differences between them.

[136] There is no suggestion by the Government that the Tribunal’s description of the similarities and differences between the two positions is inaccurate, nor is there any suggestion that any evidence in this regard was overlooked or misconstrued by the Tribunal. Rather, the Government’s argument is that having concluded that there were differences in the work performed by the two groups, it was simply unreasonable for the Tribunal to conclude that Medical Adjudicators and Medical Advisors do the same or substantially the same work.

[137] A question as to a potential inconsistency in the Tribunal’s factual findings involves the Tribunal’s appreciation of the facts of the case. As such, the findings are reviewable against the standard of reasonableness.
[138] In its reasons, the Tribunal carefully reviewed the evidence adduced by both sides as to the similarities and differences in the duties and responsibilities of Medical Adjudicators and those of Medical Advisors as they evolved over time. The Tribunal concluded that throughout the history of the CPP disability benefit program there has been, and continues to be, “a significant overlap” in the functions performed by Medical Advisors and Medical Adjudicators.

[139] As noted earlier, the Tribunal found that the “core function” of both types of position was the same and that both Medical Advisors and Medical Adjudicators applied their professional qualifications and expertise in determining the eligibility of applicants for disability benefits under the Canada Pension Plan.

[140] The Tribunal did accept that Medical Advisors’ work differs from Medical Adjudicators’ work in certain respects. The Tribunal found that unlike Medical Adjudicators, Medical Advisors have always provided an oversight and advisory role in the determination of eligibility for benefits. According to the Tribunal, this involved the provision of medical advice on difficult files, training, and final decision-making responsibility at certain levels of the process. In addition, Medical Advisors provide expert medical testimony before the Pension Appeals Board - something that Medical Adjudicators do not do.

[141] The Tribunal thus found that Medical Advisors bring a different kind of knowledge to the program, perform some different tasks, and have been given some different responsibilities than Medical Adjudicators.
[142] The Tribunal concluded that these differences provided a reasonable, non-discriminatory explanation for some of the differences in salary and benefits between the two groups of employees. The differences in job function also explained why Medical Advisor and Medical Adjudicator positions might occupy different levels within a classification standard within the Health Services Group.

[143] However, the Tribunal also found that the differences in the work responsibilities between the two positions were not extensive enough to explain the wide disparity in treatment between Medical Advisors and Medical Adjudicators. In particular, the Tribunal observed that:
[T]he [Government] has failed to provide a reasonable non-discriminatory response to the following question: why have the advisors been recognized as health professionals, and compensated accordingly, when their primary function is to make eligibility determinations and yet, when the adjudicators perform the same primary function, they are designated as program administrators and are paid half the salary of the advisors? [at para. 121]


[144] In my view, there is no inconsistency in the Tribunal’s findings that would render its conclusions unreasonable.

[145] As was noted earlier, the focus of Ms. Walden’s human rights complaint is on the classification issue. Her concern is that Medical Advisors are recognized as medical professionals within the Health Services Group and are compensated accordingly, whereas Medical Adjudicators have never been recognized as health care professionals by their employer and have suffered as a result.

[146] Medical Adjudicators are classified as Program Managers/Program Administrators, a classification that does not recognize their status as registered nurses. This results in Medical Adjudicators receiving less in the way of pay and benefits than that received by other nurses working for the federal government, and also gives them less in the way of professional development opportunities. Indeed, the evidence before the Tribunal indicated that Medical Adjudicators earn between $10,000 and $13,000 less than clinical nurses employed by the Government, and approximately half of what Medical Advisors are paid. The classification of Medical Adjudicators as Program Managers/Program Administrators also means that they are denied employment benefits that are available to Medical Advisors.

[147] According to the evidence before the Tribunal positions are categorized within Occupational Groups having regard to the primary function of the position, rather than the professional qualifications of the incumbents. The Health Services Group is comprised of positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of medicine and nursing (among others) to the safety and physical and mental well-being of people. Neither Medical Advisors nor Medical Adjudicators provide care directly to patients. Nevertheless, Medical Advisors are included within the Health Services Group and Medical Adjudicators are not.

[148] It appears from Ms. Power’s testimony that the reason that Medical Advisors were historically included within the Health Services Group even though they do not provide patient care is because “Inclusion Statement 5” in the MD definition allows for the inclusion of medical doctors involved in the assessment of medical fitness for the determination of disability and other federal government benefits. There is evidently no similar “Inclusion Statement” currently in the Nursing definition. Although such an Inclusion Statement was part of the definition of the Health Services Group for a brief period between 1999 and 2003, it was not applied to Medical Adjudicators because its application would have resulted in a change in their bargaining unit.

[149] It was in this context that the Tribunal found that the primary or “core” function of both Medical Advisors and Medical Adjudicators was the same. Both types of positions required the application of medical qualifications and expertise in determining the eligibility of applicants for disability benefits under the Canada Pension Plan, and the Tribunal found that there was “a significant overlap” in the functions performed by both groups.

[150] It once again bears repeating that the Government has not challenged these factual findings.

[151] It was also in this context that the Tribunal asked itself why Medical Advisors have always been recognized as health professionals, and compensated accordingly, when their primary function is to make eligibility determinations and yet, when Medical Adjudicators perform the same primary function, they are designated as program administrators and are paid half the salary of the Medical Advisors.
[152] It is thus clear that the focus of this aspect of the Tribunal’s reasons was on the essential nature and character of the work performed by both Medical Advisors and Medical Adjudicators, as opposed to the precise day-to-day responsibilities and duties of each position. The Tribunal’s finding that the essential nature and character of the work performed by both groups is the same is not inconsistent with its finding that there are, in fact, some differences in the day-to-day responsibilities and duties of each group.

[153] Nor is there any inconsistency between the Tribunal’s finding that the essential nature and character of the work performed by both groups was the same, and its finding that the differences in the responsibilities and duties of the two groups could nonetheless justify some of the differences in salary and benefits, and could also explain why Medical Advisor and Medical Adjudicator positions might occupy different levels within a classification standard within the Health Services Group.

[154] That is, the Tribunal found that the fact that Medical Advisors may fulfill an oversight and advisory role could potentially justify a higher level of pay and benefits than that accorded to Medical Adjudicators. This does not, however, take away from the Tribunal’s finding that the essential nature and character of the work performed by both groups was the same.

[155] Nor do the differences in the day-to-day responsibilities and duties of each group explain why it is that, to quote Ms. Walden’s human rights complaint, “… when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program”.
[156] As a consequence, I am not persuaded that there is any inconsistency in the findings of the Tribunal that would render the decision unreasonable.


IX. Did the Tribunal Err in Finding that Sections 7, 10 and 53 of the Canadian Human Rights Act Demand that the Employer Offer Proportionate Pay for Proportionate Work?

[157] The Government submits that having found that the differences in work responsibilities between Medical Adjudicators and Medical Advisors are not extensive enough to explain the wide disparity in their treatment, the Tribunal created new law by finding that sections 7 and 10 of the Canadian Human Rights Act require that employers pay “proportionate compensation for proportionate work”.

[158] In support of this contention, the Government points to paragraph 143 of the Tribunal’s decision where it states that:
I find, on a balance of probabilities, that the Complainants have established that the [Government’s] refusal since March of 1978, to recognize the professional nature of the work performed by the medical adjudicators in a manner proportionate to the professional recognition accorded to the work of the medical advisors, is a discriminatory practice within the meaning of both ss. 7 and 10. The effects of the practice have been to deprive the adjudicators of professional recognition and remuneration commensurate with their qualifications, and to deprive them of payment of their licensing fees, as well as training and career advancement opportunities on the same basis as the advisors. [the Government’s emphasis]


[159] The Government says that the Tribunal erred in this regard, as it is not a discriminatory practice under either section 7 or section 10 of the Act for an employer to pay different wages to employees performing different work. Moreover, the remedial powers of the Tribunal identified in section 53 of the Act do not extend to authorize compensation, in the absence of a discriminatory practice having been established. According to the Government, in so doing the Tribunal erred in law, and this aspect of the Tribunal’s decision should be reviewed against the standard of correctness.

[160] Even if I were to accept the Government’s contention that correctness is the standard of review to be applied to this aspect of the Tribunal’s decision, I do not agree that the Tribunal erred as alleged.

[161] A fair reading of the Tribunal’s decision as a whole reveals that the Tribunal did not purport to impose an obligation on employers to pay proportionate compensation for proportionate work. Rather, the Tribunal’s concern was with the failure of the Government to recognize the professional nature of the work performed by the Medical Adjudicators in the way that the work of Medical Advisors was recognized through the inclusion of these latter positions within the Health Services Group.

[162] This is made very clear in paragraph 11 of the Tribunal’s decision where, in summarizing its findings, the Tribunal stated that:
The core function of both positions is applying professional knowledge to determine eligibility for CPP disability benefits. The Respondents have failed to provide a reasonable, non-discriminatory explanation as to why this function is medical work when the advisors do it, and program administration work when the adjudicators do it.


[163] It was this denial of professional recognition through the classification process for positions performing the same “core function” (and many of the same duties) that was identified as the discriminatory practice by the Tribunal.

[164] It is true that pay levels within the Federal Public Service are largely determined by the classification of positions within an Occupational Group and sub-group, and by the level of positions within the relevant sub-group. As the Government conceded in the hearing before me, the issues of compensation and classification are closely intertwined and it is difficult to disengage one from the other.

[165] It is also true that the reclassification of Medical Adjudicators to include them within the Health Services Group could increase the wages paid to Medical Adjudicators, and could also improve their employment benefits. However, this would be the consequence that flows from Medical Adjudicators receiving the professional recognition accorded to others performing the same “core function”. It is not the result of the imposition of a purported legal obligation by the Tribunal requiring the Government to pay proportionate compensation for proportionate work.



X. Did the Tribunal Err in Finding that Liability Should be Assessed from March of 1978 to the Present Time?

[166] The Government’s final argument is that the Tribunal erred in finding that liability should be assessed from the point at which the Canadian Human Rights Act came into force in March of 1978, up to the time of the Tribunal hearing.

[167] According to the Government, the facts of this case do not warrant a departure from the “ordinary practice” of awarding remedies for no more than one year prior to the filing of the human rights complainant.

[168] I agree with the parties that reasonableness is the appropriate standard of review to be applied to this aspect of the Tribunal’s decision.

[169] In support of its position, the Government relies on the comments of the Federal Court of Appeal in NPF, above, at paras. 46-49, where the Court discussed the “appropriate cut-off date” for an award of damages for lost wages in a section 11 pay equity case.

[170] The Court noted that the claim in that case was specifically limited to the period commencing one year prior to the date of the filing of the complaint. There was also evidence before the Tribunal that it was the Commission’s practice to limit claims in this fashion. According to the Court, there was arguably some justification for this practice in light of the one-year limitation period contained in paragraph 41(e) of the Canadian Human Rights Act.

[171] The Federal Court of Appeal went on in paragraph 49 of its reasons to observe, in obiter, that “there must be some reasonable time frame fixed around any claim for retroactive pay”. While recognizing that the provisions of the Act are remedial rather than punitive, the Court noted that it may represent a considerable hardship to an employer to have to face claims for retroactive wages going back many years. An employer may be disadvantaged by the passage of time in its ability to marshal evidence regarding the duties of the jobs in issue, their value, and the wages paid. The Court further observed that “the presumption that systemic discrimination will have produced the same effects in the past as it does in the present clearly becomes weaker the further it is extended into the past”.

[172] As a result, the Federal Court of Appeal stated that it would be unreasonable to allow a complainant to sustain a claim for wage discrimination for an unlimited period of time. The Court was of the view that, in ordinary circumstances, the Commission's practice of limiting claims to one year prior to the filing of the complaint struck “a reasonable balance between the competing interests involved”. The Court went on to recognize, however, that like any limitation period, the one-year period was somewhat arbitrary, and could be varied in cases where it could be demonstrated that a longer or shorter period was warranted: NPF at para. 49.

[173] In considering the Government’s argument, it is important to put the comments of the Federal Court of Appeal in NPF into context. In NPF, the Government had admitted liability under section 11 of the Act. What was at issue before the Tribunal, and, subsequently, the Federal Court of Appeal, was whether the remedy should include a retroactive wage adjustment for a period extending back one year prior to the filing of the original complaint: see NPF at para. 11.

[174] As a consequence, all of the Federal Court of Appeal’s comments were made in relation to the exercise of the Tribunal’s discretionary remedial power under section 53 of the Canadian Human Rights Act.

[175] As the Tribunal observed in this case at paragraph 31 of its reasons, one has to distinguish between the determination of liability for discriminatory conduct under sections 7 and 10 of the Act, and the exercise of the Tribunal’s remedial discretion under section 53(2) to compensate victims for losses caused by the discriminatory conduct. As the Tribunal noted, these are “related, but separate questions”.

[176] In this case, the Tribunal first had to determine whether the conduct of the Government of Canada constituted a discriminatory practice under either section 7 or section 10 of the Canadian Human Rights Act. Assuming that a discriminatory practice was found to have occurred, part of the Tribunal’s inquiry required a finding as to when the discriminatory practice had commenced.

[177] The complainants alleged that the discriminatory practice began with the hiring of the first nurses to work as Medical Adjudicators in 1972. The Tribunal did not accept this argument. Relying on decisions such as Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, 75 N.R. 303, at para. 20, the Tribunal observed that the Canadian Human Rights Act only came into force in March of 1978, and does not generally have retrospective application to conduct and practices which occurred prior to that date: see Tribunal decision at para. 27.

[178] The Tribunal also rejected the Government’s contention that its potential liability for discriminatory conduct or practices should be further limited to one year prior to the filing of Ms. Walden’s complaint in 2004. As the Tribunal noted, this would mean that it would be required to dismiss the complaints of those complainants who left the CPP disability benefit program prior to 2003.

[179] As the Federal Court of Appeal observed in the NPF decision, there is a one-year limitation period contained in paragraph 41(1)(e) of the Canadian Human Rights Act. This limitation period is not absolute, however, and the Commission has the discretionary power to accept complaints regarding discriminatory practices allegedly occurring more than one year prior to the filing of the complaint. This is what appears to have happened with respect to many of the complaints in this case.

[180] It was in this context that the Tribunal made its finding that the discriminatory practice in issue in this case - namely the Government’s refusal to recognize the professional nature of the work performed by Medical Adjudicators in a manner proportionate to the professional recognition accorded to the work of Medical Advisors – began in March of 1978, with the coming into force of the Canadian Human Rights Act: see Tribunal decision at para. 143. This was a finding that was reasonably open to it on the record before it.
[181] The Government argues that it would not be fair for it to be “on the hook” for back wages extending over a period of more than 30 years. In particular, the Government says that the Medical Adjudicators did not clearly articulate their complaint prior to filing their Statement of Particulars in April of 2007. This deprived the Government of the opportunity to make representations to the Commission as to why it should not exercise its discretion under paragraph 41(1)(e) of the Act to deal with acts or omissions which occurred more than one year before the filing of the complaint.

[182] The Government says that throughout the history of this dispute, Medical Adjudicators have only sought reclassification as nurses within the NU Classification Standard. The suggestion that Medical Adjudicators do the same work as Medical Advisors, and that the differential treatment between the two groups therefore amounted to discrimination, was clearly articulated for the first time only in April of 2007 with the delivery of the complainants’ Statement of Particulars.

[183] I would start by observing that although their approach to the issue may have evolved over time, it is clear from the record that the Medical Adjudicators have long been consistent in their position that they were being treated unfairly by the Government in the way that their positions were classified, and that the failure of the Government to include their positions within the Health Services Group meant that they were being denied the professional recognition to which they believed that they were entitled.


[184] It is also clear that the Medical Adjudicators have made no secret of their dissatisfaction with the situation, and that it has been an ongoing source of friction between the Medical Adjudicators and their employer for many, many years.

[185] Moreover, Ms. Walden’s 2004 complaint form makes it very clear that the Medical Adjudicators were of the view that the differences in the treatment accorded to them relative to that accorded to Medical Advisors constituted discrimination on the basis of sex. In this regard, it will be recalled that Ms. Walden’s complaint concludes with the statement that:
Put simply, my employer is saying that when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program.


[186] As I understand it, after Ms. Walden filed her human rights complaint, other Medical Adjudicators joined in the complaint. It appears that this was done by simply adding these individuals to Ms. Walden’s complaint, rather than having them file separate complaint forms. Thus, the allegations made by all of the complainants are exactly the same.

[187] As a consequence, the Government would - or should - have been aware at the time that these additional complainants joined in the complaint that it faced allegations of discrimination involving Medical Adjudicators going back many years, and that these complaints related to the professional recognition denied to Medical Adjudicators in comparison to that accorded to Medical Advisors.
[188] It should also be noted that there is a positive obligation on employers to provide a workplace that is free from discrimination. There is no corresponding obligation on employees to put the employer on notice of a potential discriminatory practice before liability can start to run.

[189] The Tribunal recognized that the complainants do not have to show that the Government knew or ought to have known that the impugned practices were discriminatory. It will be sufficient if the effect of their practice was to deprive the Medical Adjudicators of an employment benefit on the basis of a prohibited ground.

[190] That said, the Tribunal clearly understood that the question of knowledge or intent could be relevant to the issue of compensation under s. 53(3) of the Act: see Tribunal decision at para. 93. Moreover, paragraph 53(2)(c) of the Act empowers the Tribunal to award compensation for “any or all of wages lost as a result of the discriminatory practice” [my emphasis]. Consequently, it is clear that there is no absolute right on the part of a complainant to be automatically compensated for any and all losses flowing from the discriminatory practice. In addition, as the Federal Court of Appeal observed in NPF, there must be some reasonable time frame fixed around any claim for retroactive pay.

[191] There may be any number of reasons in a given case as to why a limit should be imposed on remedial awards made pursuant to section 53 of the Act, including matters relating to the conduct of the complainants: see, for example, Chopra v. Canada (Attorney General), 369 N.R. 207 at para.40. Indeed, the Tribunal specifically recognized that it was open to it to impose a limit on the compensable losses caused by the discriminatory practice in issue in this case.

[192] It is thus clear that the Tribunal left the door open to considering the Government’s arguments in its consideration of the scope of the appropriate remedy under paragraph 53(2)(c) of the Act: see Tribunal decision at para. 146. How the Tribunal ultimately decided to exercise its remedial discretion is the subject of other proceedings, and is not before me at this time.


Conclusion

[193] For these reasons, I have concluded that the Tribunal’s decision was reasonable in that it meets that standard of justification, transparency and intelligibility identified by the Supreme Court of Canada in Dunsmuir. I am also satisfied that the Tribunal’s decision falls within the range of possible acceptable outcomes which are defensible in light of the facts and the law. As a consequence, the application for judicial review is dismissed.


Costs

[194] I see no reason why costs should not follow the event insofar as the complainants are concerned. Given that all of the complainants appearing on this application were represented by the same counsel, only one set of costs will be awarded. Having regard to its public interest mandate, the Commission did not seek its costs, and none are awarded.




JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed, with one set of costs to the respondents Ruth Walden, et al. The Canadian Human Rights Commission shall bear its own costs.



“Anne Mactavish”
Judge
APPENDIX

Canadian Human Rights Act

7. It is a discriminatory practice, directly or indirectly,


(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.


10. It is a discriminatory practice for an employer, employee organization or employer organization





(a) to establish or pursue a policy or practice, or


(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.


11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

(2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.

(3) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be the same establishment.

(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.

(5) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.

(6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section.

(7) For the purposes of this section, “wages” means any form of remuneration payable for work performed by an individual and includes


(a) salaries, commissions, vacation pay, dismissal wages and bonuses;

(b) reasonable value for board, rent, housing and lodging;

(c) payments in kind;
(d) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and


(e) any other advantage received directly or indirectly from the individual’s employer.


53. (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.

(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:

(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or

(ii) making an application for approval and implementing a plan under section 17;


(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;


(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;

(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and

(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.

(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.

(4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate.


7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :

a) de refuser d’employer ou de continuer d’employer un individu;

b) de le défavoriser en cours d’emploi.





10. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour l’employeur, l’association patronale ou l’organisation syndicale :

a) de fixer ou d’appliquer des lignes de conduite;

b) de conclure des ententes touchant le recrutement, les mises en rapport, l’engagement, les promotions, la formation, l’apprentissage, les mutations ou tout autre aspect d’un emploi présent ou éventuel.





11. (1) Constitue un acte discriminatoire le fait pour l’employeur d’instaurer ou de pratiquer la disparité salariale entre les hommes et les femmes qui exécutent, dans le même établissement, des fonctions équivalentes.

(2) Le critère permettant d’établir l’équivalence des fonctions exécutées par des salariés dans le même établissement est le dosage de qualifications, d’efforts et de responsabilités nécessaire pour leur exécution, compte tenu des conditions de travail.

(3) Les établissements distincts qu’un employeur aménage ou maintient dans le but principal de justifier une disparité salariale entre hommes et femmes sont réputés, pour l’application du présent article, ne constituer qu’un seul et même établissement.


(4) Ne constitue pas un acte discriminatoire au sens du paragraphe (1) la disparité salariale entre hommes et femmes fondée sur un facteur reconnu comme raisonnable par une ordonnance de la Commission canadienne des droits de la personne en vertu du paragraphe 27(2).



(5) Des considérations fondées sur le sexe ne sauraient motiver la disparité salariale.


(6) Il est interdit à l’employeur de procéder à des diminutions salariales pour mettre fin aux actes discriminatoires visés au présent article.

(7) Pour l’application du présent article, «salaire » s’entend de toute forme de rémunération payable à un individu en contrepartie de son travail et, notamment :

a) des traitements, commissions, indemnités de vacances ou de licenciement et des primes;

b) de la juste valeur des prestations en repas, loyers, logement et hébergement;

c) des rétributions en nature;
d) des cotisations de l’employeur aux caisses ou régimes de pension, aux régimes d’assurance contre l’invalidité prolongée et aux régimes d’assurance-maladie de toute nature;

e) des autres avantages reçus directement ou indirectement de l’employeur.


53. (1) À l’issue de l’instruction, le membre instructeur rejette la plainte qu’il juge non fondée.


(2) À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la personne trouvée coupable d’un acte discriminatoire :




a) de mettre fin à l’acte et de prendre, en consultation avec la Commission relativement à leurs objectifs généraux, des mesures de redressement ou des mesures destinées à prévenir des actes semblables, notamment :


(i) d’adopter un programme, un plan ou un arrangement visés au paragraphe 16(1),

(ii) de présenter une demande d’approbation et de mettre en oeuvre un programme prévus à l’article 17;

b) d’accorder à la victime, dès que les circonstances le permettent, les droits, chances ou avantages dont l’acte l’a privée;




c) d’indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l’acte;



d) d’indemniser la victime de la totalité, ou de la fraction des frais supplémentaires occasionnés par le recours à d’autres biens, services, installations ou moyens d’hébergement, et des dépenses entraînées par l’acte;


e) d’indemniser jusqu’à concurrence de 20 000 $ la victime qui a souffert un préjudice moral.




(3) Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur peut ordonner à l’auteur d’un acte discriminatoire de payer à la victime une indemnité maximale de 20 000 $, s’il en vient à la conclusion que l’acte a été délibéré ou inconsidéré.



(4) Sous réserve des règles visées à l’article 48.9, le membre instructeur peut accorder des intérêts sur l’indemnité au taux et pour la période qu’il estime justifiés.
FEDERAL COURT

SOLICITORS OF RECORD


DOCKET: T-55-08


STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. RUTH WALDEN ET AL and THE CANADIAN HUMAN RIGHTS COMMISSION


PLACE OF HEARING: Ottawa, Ontario


DATE OF HEARING: March 17, 2010


REASONS FOR JUDGMENT
AND JUDGMENT: Mactavish J.


DATED: May 4, 2010



APPEARANCES:

Patrick Bendin
Claudine Patry

FOR THE APPLICANT (AGC)

D. Laurence Armstrong
Heather Wellman
FOR THE RESPONDENTS (RUTH WALDEN ET AL)

Daniel Poulin

FOR THE RESPONDENT
(CHRC)







SOLICITORS OF RECORD:

JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada

FOR THE APPLICANT (AGC)
ARMSTRONG WELLMAN
Barristers & Solicitors
Victoria, B.C.

FOR THE RESPONDENTS
(RUTH WALDEN ET AL)
THE CANADIAN HUMAN RIGHTS COMMISSION
Legal Counsel
Ottawa, Ontario

FOR THE RESPONDENT
(CHRC)

CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE very good!

CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
ruth walden et al.
Complainants
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
social development canada,
treasury board of canada, and
public service human resources management agency of canada
Respondents
DECISION
MEMBER: Karen A. Jensen
2009 CHRT 16
2009/05/25


I. WHAT IS THE APPROPRIATE MANNER TO REDRESS THE DISCRIMINATORY
PRACTICE? 2
A. The Respondents' Proposal: The Creation of a New Nursing Subgroup 4
B. The Commission's Proposal: The Advisors and the Adjudicators Share a Single
Occupational Group or Classification called "Medical Adjudication" 7
C. The Complainants' Proposal: Include the Adjudicators in an Existing NU Subgroup
such as Community Health Nursing or Nurse Consultants 8
II. COMPENSATION FOR WAGE LOSS 15
III. COMPENSATION FOR PAIN AND SUFFERING 37
IV. LEGAL EXPENSES 40[1] This is a decision regarding the appropriate remedies in complaints involving approximately 413 medical adjudicators in the CPP Disability Benefits Program. The Complainants are a group of predominantly female nurses who work with medical advisors, a group of predominantly male doctors, to determine eligibility for CPP disability benefits.
[2] The Complainants alleged that since they were first hired in 1972, they have been performing the same work as the medical advisors and yet have been treated very differently from the advisors in terms of professional recognition, remuneration, payment of licensing fees, and training and career advancement opportunities.
[3] In a decision dated December 13, 2007, the Tribunal found that while there was significant overlap in the functions that had been and were being performed by the advisors and the adjudicators, there were differences in the work that justified some, but not all, of the differential treatment between the two groups of employees. In particular, the Tribunal found that the Respondent had not provided a reasonable, non-discriminatory response as to why the advisors are recognized as health professionals and compensated accordingly, when their primary function is to make eligibility determinations and yet, when the adjudicators perform the same function, they are designated as program administrators and are compensated as such.
[4] Having found the complaints to be substantiated, the Tribunal granted the parties' request to order that the discriminatory practice cease, but refrained from specifying the measures that should be taken to redress the practice. As per their request, the parties were given an opportunity to negotiate the appropriate measures to be taken with all of the stakeholders, with the Tribunal retaining jurisdiction over the remedy issues in the event that the matters were not resolved.
[5] The parties were given three months to negotiate a settlement of the outstanding remedy issues. However, an agreement was not reached.
[6] Therefore, a hearing was convened to address the following issues: (1) the appropriate manner to redress the discriminatory practice; (2) compensation for lost wages if any; (3) the compensation for pain and suffering experienced by the Complainants as a result of the discriminatory practice; and (4) any other outstanding issues with respect to remedy.
[7] The majority of the Complainants were represented by counsel. Those Complainants who were not represented by counsel did not appear at either the liability or the remedy stages of the hearings, although they had notice of both.
I. WHAT IS THE APPROPRIATE MANNER TO REDRESS THE DISCRIMINATORY PRACTICE?
[8] Section 53(2)(a) of the Canadian Human Rights Act (the CHRA or the Act) provides the Tribunal with the authority to make orders to redress the discriminatory practice or to prevent the same or a similar practice from occurring in the future.
[9] In its decision of December 13, 2007, the Tribunal found that while both the advisors and the adjudicators use their professional knowledge in the health sciences to determine eligibility for CPP disability benefits, only the advisors are classified as health professionals within the federal public service. The adjudicators are classified as program administrators (PM's) within the Programme Administration (PA) classification, whereas the advisors are classified as medical officers (MOF's) within the Medicine (MD) in the Health Services Group. Positions that are classified within the Health Services Group are recognized as involving the application of professional health care knowledge.
[10] From 1988 onward, the medical adjudicators have been seeking recognition as health care professionals through classification of their position in the Nursing (NU) Group within Health Services. These attempts have been unsuccessful.
[11] The Tribunal found that the Respondents' refusal since March of 1978, to recognize the professional nature of the work performed by the medical adjudicators in a manner proportionate to the professional recognition accorded to the work of the medical advisors constituted a discriminatory practice. The effects of the discriminatory practice were to deprive the adjudicators of professional recognition and remuneration commensurate with their qualifications, including payment of their licensing fees, as well as training and career advancement opportunities.
[12] One of the principal ways that professional work is recognized in the federal public service is through the classification of positions. Positions are classified according to their primary function. Positions are first allocated to an Occupational Group, which is a collection of jobs that are grouped together based on common duties or similarity of work. Within an Occupational Group, there are Classifications that are more specific to the kinds of work that are done within that group. For example, within the Health Services Group there is the Nursing Classification, and the Medicine Classification, among others. Within the Classifications there are subgroups that further narrow the definition of the work done. For example, within the Nursing Classification, there is the Community Health Nursing subgroup. That group of employees provides community health nursing services, whereas the Hospital Nursing subgroup provides hospital nursing care.
[13] Initially, the represented Complainants and the Commission asserted that the only way to redress the discriminatory practice was to create a new Classification that might be called Medical Adjudication, which encompassed the work of both the adjudicators and the advisors. Only through the creation of a new Classification could the similarity and relative value of the professional work done by the adjudicators and the advisors be fully recognized and compensated, it was argued.
[14] However, at the conclusion of the hearing on the remedy issues, the represented Complainants changed their position, asserting instead that the appropriate redress would be to include them in an existing subgroup within the Nursing Classification. They stated that either the Community Health Nurse or the Nurse Consultant subgroups would be appropriate. The reasons provided for the proposal were that it would avoid the delays involved in establishing a new subgroup or classification, and would effectively redress the discriminatory practice.
[15] The Commission, on the other hand, maintained its position to the end that the only appropriate redress was to create a new Classification for both the advisors and the adjudicators since no other solution would fully address the issues raised in the liability decision.
[16] The Respondents proposed that a new Nursing subgroup be created for the medical adjudicators within the Health Services Occupational Group and the Nursing Classification. It might be called the Medical Adjudicators' subgroup.
[17] What follows is a review of the evidence regarding each of the proposals provided by the parties.
A. The Respondents' Proposal: The Creation of a New Nursing Subgroup
[18] Ms. Patricia Power, Special Advisor to the Vice-President of Strategic Infrastructure, Organization and Classification at the Public Service Agency, one of the Respondents, testified that a number of different options were considered for redressing the discriminatory practice. The options included the creation of a new Occupational Group outside of the Health Services Group that would contain both the advisor and the adjudicator positions, the creation of a new Classification within the Health Services Group that would contain both positions and the creation of a new subgroup within the Nursing Classification for the adjudicators alone.
[19] Ms. Power testified that the option of creating a new Nursing subgroup was considered to be the best for the following reasons: (1) it provides effective redress for all of the issues raised in the Tribunal's liability decision of December 2007; (2) it is the most expedient option; and, (3) it is the least disruptive in terms of its effects on other public service employees and on the public service classification system.
[20] With respect to the first issue - effective redress of the discriminatory practice - Ms. Power testified that creating a new subgroup of Nursing for the adjudicators within the Health Services Occupational Group will have the following effects:
i. Professional recognition - By including medical adjudication as a subgroup within the Health Services Occupational Group, it will be acknowledged and recognized that medical adjudicators apply their comprehensive knowledge of the professional specialty of nursing in the work that they do. Like the medical advisors, they will be recognized and classified as health care professionals.
ii. Remuneration commensurate with qualifications - In the Federal public service, the rates of pay for represented employees are set through collective bargaining. Ms. Power testified that once the new subgroup has been approved by the Minister, the bargaining agent for the adjudicators would likely change. The adjudicators would most likely be represented by the same bargaining agent as the medical advisors.
Although there are different pay lines for each of the medical specialties in the Health Services Group, they are negotiated at the same bargaining table by the same bargaining agent. Compensation will be negotiated on the basis of the adjudicators' classification as NU's, not PM's. The adjudicators will therefore, be in a position to receive remuneration that is commensurate with their classification as Nurses.
iii. The payment of licensing fees - Classification within the Health Services Occupational Group would mean that, like the advisors, the adjudicators would have a separate line item in the budget for the payment of their licensing fees. Payment of the fees would not come out of the education budget as is currently the case.
iv. Training and career development - Ms. Powers testified that classification as health care professionals would put the nurses on the same footing as the doctors; training and career development would have its own place in the budget, and would be recognized as being as important as the training and career development of other health care professionals.
v. Career advancement possibilities - In the liability portion of the hearing, Ms. Walden testified that her chances of obtaining a job as a nurse in the public service were not as good as they would be if she was classified as a health care professional, like the medical advisors. Ms. Power testified that the classification of medical adjudicators as health care professionals within the Health Services Occupational Group would resolve that issue.
[21] With regard to the second reason as to why the creation of an NU subgroup is preferable from the Respondents' point of view, Ms. Power testified that the creation of a new subgroup is expedient since it is the only viable option that would not likely require the creation of a new classification standard. Developing a new classification standard takes a considerable amount of time. It involves at least two to three years of extensive consultation and work. Since there are likely only one or two levels of adjudicator work, a new subgroup could be created almost immediately without the need to create a new classification standard.
[22] With regard to the third reason, Ms. Power testified that the creation of the new subgroup would not affect the advisors' classification and would be in keeping with the public service's classification principles. She stated that the advisors are appropriately classified at present. It would be unprecedented to carve out a little portion of jobs that are now allocated to the Medicine Classification and to reclassify the advisors as Adjudicators. Moreover, any change to the advisors' job classification or Occupational Group definition would likely cause them some concern. Such changes should not be made without providing the advisors with an opportunity to speak to the issue. The advisors have not been given that opportunity.
B. The Commission's Proposal: The Advisors and the Adjudicators Share a Single Occupational Group or Classification called "Medical Adjudication"
[23] The Commission proposed that the advisors and the adjudicators share a Classification or Occupational Group. In the Commission's view, this would redress the discriminatory practice of classifying the adjudicators differently even though they perform substantially similar work to that of the advisors. The Commission argued that this means of providing redress would be consistent with the public service's practice of classifying positions on the basis of the primary function of the position, rather than on the qualifications of the person holding the job. Since the primary function of both the adjudicator and the advisor positions is to determine eligibility for CPP disability benefits, they should be classified in the same Group or Classification.
[24] The Commission did not produce evidence to support its proposal. Rather, it attempted to elicit evidence in support of the proposal through the cross-examination of Ms. Power and other Respondent witnesses.
[25] Counsel for the Commission asked Ms. Power if the Commission's proposal of having the advisors and the adjudicators share an Occupational Group or a Classification would result in greater wage parity between those two groups than if they occupied different Classifications within Health Services. Ms. Power did not believe that sharing a Group or a Classification would result in a wage and benefit package that was closer to that of the advisors than if they were in different Groups or Classifications. She stated that since the adjudicators do not perform exactly the same work as the advisors, and they utilize different professional knowledge from the doctors, the adjudicators' salary will be different from that of the advisors, regardless of whether they are in the same bargaining unit. It is their classification as nurses that will ensure that the adjudicators receive remuneration commensurate with their professional qualifications, not whether they are in the same bargaining unit or Occupational Group as the advisors.
[26] Ms. Power explained that the creation of a new Classification or Group that included both positions would take a long time because it requires the development of a new classification standard. Moreover, the creation of a new Classification or Group of this nature is not in keeping with the classification practices in the public service. Classifications tend to cross government departments and draw in positions based on the commonality of work that is performed across the breadth of the public service. A Classification or Group that included only 2 positions would be highly unusual and impractical.
[27] Ms. Power further testified that there are retention and recruitment problems with doctors across the core public service. These problems may be exacerbated by a change that would reclassify medical advisors from MD's to MA's (Medical Adjudicators) since they would no longer be classified as doctors in the public service. Given that health professionals, like the adjudicators and advisors, desire recognition and classification based on the professional knowledge that they utilize, this would not be a positive change.
C. The Complainants' Proposal: Include the Adjudicators in an Existing NU Subgroup such as Community Health Nursing or Nurse Consultants
[28] The represented Complainants stated that they are ambivalent with regard to the means of redressing the discriminatory practice, provided they are recognized as nurse professionals, and treated fairly relative to the advisors. However, they did assert a preference for being allocated to an existing Nursing subgroup such as Community Health Nursing (CHN) or Nurse Consultants. They argued that this could be accomplished by simply including a statement in the definition of the Nursing Classification like the one that is included in the Medicine Classification. That inclusion statement (called inclusion statement 5) permits all those who assess medical fitness for the determination of disability benefits and other federal government benefits to be placed within that Classification. According to the Complainants, if inclusion statement 5 were inserted into the definition of Nursing and into the Subgroup definitions of CHN or Nurse Consultants, the Complainants could easily be placed in one of those two subgroups.
[29] The Complainants argued that the advantage of placing them in either the CHN or Nursing Consultant subgroups instead of creating a new nursing subgroup is that it could be done by Tribunal order rather than going through the process described by Ms. Power to implement a new subgroup. This would make the implementation of the remedy more expeditious in the Complainant's view.
[30] In my view, the problem with this approach is that the adjudicators' work does not fit the Subgroup definition for Community Health Nursing, and there is no evidence on the record that would permit me to determine whether the adjudicators' work would fit the definition of the Nursing Consultant subgroup.
[31] According to the Subgroup definition for Community Health Nursing, that work involves "the provision of health guidance and nursing care to individuals, families and groups in the home and community directed towards the prevention of disease and the promotion and maintenance of health; the provision of consultative services".
[32] Medical adjudication does not appear to meet that definition since Community Health Nursing is directed specifically towards home and community health care. There was no evidence regarding the meaning of the last part of the definition - "the provision of consultative services". Therefore, I have no way of knowing whether the consultative services relate to home and community health or may be more general than that.
[33] However, Ms. Power did testify that a new Nursing subgroup had to be created because even with the addition of inclusion statement 5 into the NU definition, the adjudicators' work does not fit the existing NU subgroup definitions.
[34] In contrast, the Medical Officer subgroup definition (which is the medical advisors' subgroup) is clearly more general than the CHN definition. It states that the work of a Medical Officer involves the performance, provision of advice on, supervision, or direction of professional and scientific work in one or more fields of medicine. Even without inclusion statement 5, one can see how the advisors' work would more readily fit the subgroup definition of Medical Officer than the work of the adjudicators would fit the subgroup definition of Community Health Nursing.
[35] The Complainants also suggested that they be included within the NU consultant subgroup. However, there is no evidence as to what the definition of this position is and whether the adjudicators fit the definition.
[36] It was incumbent upon the Complainants to present evidence establishing the appropriateness of the remedial option they were advocating. They failed to do so.
Ms. Power's Credibility
[37] The Complainants and the Commission attempted to discredit Ms. Power's testimony by stating that there was a fundamental contradiction between the testimony that she gave in the liability portion of the hearing and the testimony she gave in the remedy portion. Therefore, her evidence, in its entirety, was not credible, according to the Complainants and the Commission.
[38] In the liability phase of the hearing, Ms. Power testified that it was impossible to classify the adjudicators as Nurses using the existing definitions and standards because the adjudicators' work did not fit the Occupational Group definition for Health Services and did not fit any of the existing subgroup definitions.
[39] Then, in the remedy phase, Ms. Power testified that, provided certain changes are made, it would now be possible to classify the adjudicators as Nurses. Ms. Power testified that the creation of the new subgroup would require the definition of Nursing to be changed so that direct patient care is no longer a requirement for inclusion in the Classification. In addition, she stated that it may be necessary to introduce inclusion statement 5 into the Nursing definition, which is provided in the Medicine Classification definition, and which allows advisors to be included in the MD Classification.
[40] Ms. Power testified that there may also have to be changes to the MD and PA definitions to ensure that the adjudicator work did not fall within these Classifications.
[41] In my view, there is no contradiction in Ms. Powers' testimony during the two phases of the hearing. Her testimony in the first phase was based on the definitions and standards as they were at the time. At that time, the Respondents did not believe that their classification practice with respect to the adjudicators was discriminatory. Ms. Power's testimony in the second phase was based on the Tribunal's finding that the Respondents' classification practice was discriminatory and that action had to be taken to redress it. In view of those findings, the Respondents proposed changes to the definitions that they thought would provide effective redress.
[42] Ms. Power indicated that the Respondents could and would make the necessary changes to create a new nursing subgroup for the adjudicators, if ordered to do so by the Tribunal. I find nothing contradictory in the statements made by Ms. Power with regard to the possibility of reclassifying the adjudicator position.
[43] The Complainants submitted that the evidence of Ross MacLeod, the Director General of Service Delivery in the Human Resources Branch at HRSDC, was more credible and to be preferred over that of Ms. Power. Mr. MacLeod testified about the Service Management Structural Model, which is a new way of organizing the service delivery arm of the HRSDC portfolio to provide better service for Canadians. The Model requires standardized organizational designs and revised job descriptions that will ensure that wherever they are, Canadians can receive the same type of service.
[44] Mr. MacLeod testified that in a period of less than 2 years, the Service Management Structural Model team has classified and developed 22 job descriptions, and is working on an additional 18 to 20. He stated that ultimately the adjudicators' job description will also be modified. However, the team will wait until the present complaints have been resolved before modifying the adjudicators' job description to conform to the Service Management Structural Model. Mr. MacLeod stated that the team will respond as required to a decision from this Tribunal.
[45] Counsel for the Complainants asserted that, contrary to Ms. Power, Mr. MacLeod provided evidence that it is relatively simple and straightforward to reclassify positions in the public service. Therefore, the Complainants asserted, the Tribunal should reclassify the position as it sees fit, without any consideration to the potentially negative consequences and disruptions to the public service about which Ms. Power testified. In the Complainants' view, the Service Management Structural Model team can deal with the repercussions of the Tribunal's decision, as Mr. MacLeod has clearly indicated they are willing to do.
[46] I disagree with Complainant counsel's interpretation of Mr. MacLeod's evidence. In my view, he simply said that, working within the particular parameters set out by the Service Management Structural Model, his team was well on their way to accomplishing their goals. He certainly did not suggest that the Tribunal could issue any order it saw fit without regard to the evidence provided by Ms. Power. Nor did he present an alternative proposal as to how to redress the discriminatory practice. Indeed, he was not called to testify about the appropriate means to correct the discriminatory practice; he was called to testify that once the Tribunal had determined how to redress the discriminatory practice, the team would deal with the decision within the context of their mandate.
[47] Therefore, I reject counsel's suggestion that Mr. MacLeod's evidence contradicted that of Ms. Power's and that Mr. MacLeod's evidence is to be preferred. The two witnesses testified about different issues and did not contradict one and other.
[48] Moreover, I find that Ms. Power's testimony was credible, consistent and withstood the test of cross-examination very well.
[49] The Commission and the Complainants were unable to demonstrate how Ms. Power's solution fails to provide full redress. The Commission argued that the creation of a new Nursing Subgroup would not guarantee that the Complainants will receive remuneration commensurate with their professional qualifications; it will merely put them in a position to negotiate that. It was argued that the Tribunal should go further than simply putting the adjudicators in a good negotiating position in order to effectively redress the discriminatory practice.
[50] Although there is no guarantee with respect to the amount of compensation that the adjudicators will receive through collective bargaining, Ms. Power indicated that the adjudicators' new compensation will reflect the fact that they have been reclassified as nurses. The Commission's proposal to put the advisors and the adjudicators in the same Classification or Occupational Group would not guarantee a particular wage rate any more than being placed in a new NU subgroup would. Like the Respondent's proposal, it would simply put them in a position to negotiate a wage rate that is commensurate with their professional qualifications. Moreover, I accept Ms. Power's evidence that the adjudicators would not receive greater wage and benefit parity with the advisors merely by being in the same Classification or Occupational Group.
[51] Nor would the adjudicators' wage rate be guaranteed by allocating their work to the CHN or Nurse Consultant subgroups, as proposed by the Complainants, unless the Tribunal assigned a specific level to the adjudicators. In order to assign a level of work to the adjudicators, the Tribunal would need to have a reasonably accurate estimate of the value of the adjudicators' work relative to other jobs in the public service and the CPP Disability Benefits unit. As will be discussed in greater detail in the next section, it is not possible to do this with the information that has been provided to the Tribunal.
[52] The proposals put forward by the Commission and the Complainants are not superior in terms of their ability to correct the discriminatory practice. Moreover, they would likely produce negative effects on human resource management in the public service. The Commission's proposal would have a significant impact on the advisors since they too would be reclassified. The advisors have not been given an opportunity to speak to this issue. The Complainants' proposal of placing the adjudicator position in either the Community Health Nursing or Nurse Consultant Subgroups would provide recognition as health professionals, but the problem that formed the genesis of this case would persist: the work of the Complainants would be mischaracterized, and their duties, responsibilities and functions would be shoe-horned into a category that was never intended to contain them. Who can say what new inequities would be spawned by such a "make do" solution? Surely the remedial goals of the CHRA require a form of redress better tailored to the actual needs of the situation.
[53] Therefore, I accept Ms. Power's testimony that the creation of a new Nursing Subgroup represents a reasonable and effective means of redressing the discriminatory practice and ensuring that it does not occur again in the future. It represents an effective redress option. Moreover, it creates the least disruption to and negative consequences for the broader public service.
[54] It must be noted however, that the proposal to create a new Nursing Subgroup right away does run counter to a suggestion made by Mary Daly, the expert witness who testified on behalf of the Respondent at the remedy stage.
[55] Ms. Daly is a human resource consultant with a strong domain expertise in classification, compensation and organizational design. She was asked to provide an assessment of an expert report by Scott MacCrimmon, a human resource consultant who testified on behalf of the represented Complainants with respect to the wage loss resulting from the discriminatory practice.
[56] In her report and testimony, Ms. Daly provided a thorough critique of Mr. MacCrimmon's methodology for assessing wage loss and stated that, in her professional view, his conclusions were not reliable. She did not, however, provide an alternative assessment of whether the Complainants suffered any wage loss as a result of the discriminatory practice. Rather, she stated that to determine whether there was any wage loss, and also the appropriate redress, one would have to do a full "diagnostic" of the work of CPP disability claims adjudication.
[57] Ms. Daly suggested that a full diagnostic might reveal that the creation of a new subgroup within Nursing was not necessary. It could establish that the adjudicators should remain in the PM group, but that management practices must be improved.
[58] When asked in final argument what he made of this apparent difference in the testimony of his two witnesses, counsel for the Respondents indicated that in an ideal world, one might begin with Ms. Daly's suggested "diagnostic" to determine whether the creation of a new subgroup was indeed necessary. However, given that Ms. Power had provided evidence of action that could be taken immediately to correct the discriminatory practice, he submitted that this action - the creation of the new subgroup - constitutes the best solution in the circumstances.
[59] I agree with counsel for the Respondents. Ms. Power provided credible evidence to support the Respondents' proposal that a new Nursing Subgroup would redress the discriminatory practice. I do not think that Ms. Daly's proposal to undertake a full diagnostic is necessary given the satisfactory nature of the Respondents' proposal to create a new nursing subgroup.
[60] For these reasons and based on the evidence that was presented to me I find, on a balance of probabilities, that the most appropriate way to redress the discriminatory practice identified in the Tribunal's December 2007 decision is to create a new Nursing subgroup for the medical adjudication position(s). I order that such a subgroup be created and that the adjudicator work be placed in this subgroup. I further order that work on the creation of the new NU subgroup commence within 60 days of the date of this decision.
II. COMPENSATION FOR WAGE LOSS
[61] Subsection 53(2)(c) provides the Tribunal with the authority to order that the person found to have been engaging in a discriminatory practice compensate the victim for any or all of the wages that the victim was deprived of as a result of the discriminatory practice.
[62] The Tribunal found that the Respondents had failed to provide the Complainants with remuneration commensurate with their professional qualifications. The Complainants were paid as Program Administrators, not as Health Care Professionals. However, there was no evidence provided during the liability phase as to what the wage loss might be, if any, resulting from the discriminatory practice.
[63] In the preceding section, I found that the appropriate way of redressing the discriminatory practice was to create a new Nursing subgroup. The problem, of course, is that the Nursing subgroup did not exist in the past. Therefore, it is difficult to determine if there was any wage loss when there is no past salary line for that subgroup to compare with the adjudicators' past compensation. One way of dealing with this problem is to determine the value of the adjudicator position relative to the value of other positions performing similar work. A comparison would then be made between the adjudicators' past remuneration and the past remuneration of positions that are of comparable value.
[64] The Respondents proposed to do just that at the outset of the remedy hearing. They sought leave of the Tribunal to call evidence comparing the value of the adjudicators' work with the value of work performed by similar nursing positions in the public service.
[65] In a Ruling dated June 6, 2008 the Tribunal granted the Respondents' request to call evidence but stated that because the remedy must flow from the discriminatory practice, a comparison of the relative value of the work performed by the adjudicators and the advisors was required. The Tribunal stated, however, that a determination of the value of the work performed by the adjudicators relative to that of the advisors did not preclude a comparison of the value of the adjudicators' work to the value of other nursing positions in the public service.
[66] In the June 2008 Ruling, the Tribunal stated that it may be that the comparison between the advisors and the adjudicators reveals that the value of the adjudicators' work is equivalent to that of the NU-CHN-02 or NU-CHN-03 positions or to that of another position. In that case, the Respondents might argue that the adjudicators' wage loss should be determined on the basis of a comparison with the wages of the CHN positions at the relevant time. The Tribunal also stated that the Complainants and the Commission were free to lead evidence of a different nature, and to argue that the wage loss should be differently calculated.
[67] In the end, however, there was a problem with the Respondents' evidence and they decided not to call evidence of a comparison that was done of the relative value of the adjudicators, the advisors and other Nursing positions in the public service. Rather, it was the represented Complainants who presented evidence of a comparison of the value of the advisors' work to that of the adjudicators. The Respondents presented the evidence of a human resource expert, Mary Daly, who criticized the Complainants' expert report, but did not provide an alternative assessment.
[68] The Tribunal must determine then, whether the Complainants' evidence establishes that the value of the adjudicator position is such that if the adjudicators are properly classified as health care professionals, there is a wage gap between what the adjudicators actually earn and what they would earn as NU's.
What is the standard of proof required to establish a right to compensation?
[69] In PSAC v. Canada (Department of National Defence) ("the DND case") [1996] 3 F.C. 789, the Court of Appeal stated that the standard of proof for establishing damages is the balance of probabilities. The complainants must show that their position is more likely than not.
[70] The DND case involved a judicial review of a Tribunal decision regarding a s. 11 complaint. Section 11 provides that it is a discriminatory practice to maintain wage differences between male and female employees who are performing work of equal value. The union filed a complaint in February of 1987, alleging that the respondent, the Department of National Defence, was not paying certain female employees wages equal to those paid to certain male employees performing work of equal value. The respondent conceded that it had committed a discriminatory practice contrary to the Canadian Human Rights Act and that such discrimination was systemic.
[71] The respondent agreed to pay wage adjustments from June 1, 1987 onward, but not for a retroactive period. Following a hearing, the Tribunal concluded that it did not have the authority to grant retroactive relief under the Canadian Human Rights Act. The Tribunal also held that it was inappropriate to reach back in time to redress historic wrongs because there was no certainty with regard to the extent of the wage gap.
[72] The Court of Appeal held that the Tribunal does, in fact, have the authority to grant retroactive relief under the Act. Moreover, certainty in the proof of wage loss is not required; the standard of proof is the balance of probabilities. The Court noted that it is well settled law that once it is known that a plaintiff has suffered a loss, a court cannot refuse to make an award simply because the proof of the precise amount of the loss is difficult or impossible. The judge must do the best he or she can with the evidence that is available (see also: Public Service Alliance of Canada v. Canada (Treasury Board), [1998] C.H.R.D. No. 6, (aff'd: Canada (Attorney General) v. Public Service Alliance of Canada [2000] 1 F.C. 146) in which the Tribunal applied the Court of Appeal's approach in DND to determining wage loss under s. 53(2)(c) of the Act).
[73] In Public Service Alliance of Canada v. Canada (Treasury Board), the Tribunal held that the standard of proof must be governed by a standard of reasonableness. That is, the Tribunal will assess whether the results of the job evaluation process are reasonably accurate. In the judicial review of the Tribunal decision, the Federal Court did not take issue with this approach.
[74] Notwithstanding that the above-noted cases deal with complaints under s. 11 of the Act, I think that the principles are applicable to the present case. The Tribunal must determine whether the Complainants have established, on a balance of probabilities that had they been treated as though they were doing substantially similar work to that of the advisors and classified accordingly, they would have been paid more than they were as PM's. If the answer to this question is "yes", the Tribunal must then determine whether the Complainants have proved, on a balance of probabilities, the extent of the wage loss that they suffered as a result of the discriminatory practice.
[75] The Complainants presented the evidence of Scott MacCrimmon, an expert in job evaluation, in support of their contention that had the Respondents treated the Complainants in a non-discriminatory manner, the advisors would have earned only 15 - 25% more than the adjudicators, instead of the 50% more that they actually earned. The estimate of the wage differential was based on a comparison of the relative value of the two positions.
Scott MacCrimmon's Evidence
[76] Mr. MacCrimmon has more than 33 years of consulting experience in compensation systems. He has served as project director for many large job evaluation, job classification and pay systems studies for clients across Canada, the USA and in the Caribbean. In 2002, Mr. MacCrimmon was appointed by the Ministers of Justice and Labour to a three-member task force to conduct a comprehensive review of s. 11 of the CHRA and the Equal Wage Guidelines, 1986. Section 11 and the Guidelines define how pay equity is to be applied to all federally regulated employers in Canada (although now, federal public service employers are governed by the Public Service Equitable Compensation Act). The Task Force submitted a report to the Ministers in 2004.
[77] Mr. MacCrimmon was qualified, on consent, as an expert in job evaluation and compensation systems.
[78] Mr. MacCrimmon was retained by the represented Complainants to conduct a comparative analysis of the work of the advisors and the adjudicators and thereby provide direction on how this might affect the wage comparison. In the retaining letter, Mr. MacCrimmon was instructed by counsel for the represented Complainants to work independently and without influence by either counsel for the Complainants or any of the Complainants.
[79] Mr. MacCrimmon performed his analysis on the basis of the following sources of information:
(i) the December 13, 2007 CHRT decision in Walden et al v. Social Development Canada, Treasury Board of Canada, and Public Service Human Resources Management Agency of Canada 2007 CHRT 56, which established that the Respondents had discriminated against the Complainants contrary to sections 7 and 10 of the CHRA;
(ii) the June 6, 2008 CHRT Ruling in Walden et al v. Social Development Canada, Treasury Board of Canada, and Public Service Human Resources Management Agency of Canada 2008 CHRT 21, regarding the introduction of new evidence for the purpose of determining the appropriate remedy;
(iii) a job description for the Medical Adjudicator position dated June 6, 2006;
(iv) a job description for the Medical Advisor position dated March 14, 1990.
[80] Mr. MacCrimmon was not provided with any other material to undertake his job evaluation. Specifically, he noted that he was not provided with wage rates or salary data that might allow him to calculate differentials and the amount of wage loss arising from any discriminatory pay practice.
[81] Mr. MacCrimmon did not interview anyone in the CPP disability program, or anywhere else in the public service, to obtain more information for the job evaluation. He was told to perform the study with the materials noted above.
[82] It is important to note that at no point in time was I made aware that the Complainants had requested and were denied permission for Mr. MacCrimmon to enter the workplace to obtain additional job information to perform his job evaluation study. It would appear that the represented Complainants were of the view that the information provided to Mr. MacCrimmon was sufficient for the purposes of his study.
[83] To evaluate the adjudicator and advisor positions Mr. MacCrimmon used a generic point-factor job evaluation plan that he had developed. Mr. MacCrimmon's plan has been used by many employers including hospitals, community health care centres, banks, insurance companies and others.
[84] The plan applies 10 factors covering job skill, effort, responsibilities and working conditions. Each factor contains grade levels from low to high, with the highest grade producing the highest point rating for each factor. An accompanying job evaluation manual provides a definition of each of the factors as well as definitions for each of the grades within the factors.
[85] Mr. MacCrimmon rated the adjudicator and advisor positions using his plan. Factor by factor scores were developed based on the information contained in the two job descriptions as well as the two Tribunal decisions. Mr. MacCrimmon stated that he accepted all the findings of the Tribunal as factual and correct.
[86] Mr. MacCrimmon stated that job evaluation allows one to develop a total point score for each job. The point total becomes a measure of the "value" of the job to the employer, irrespective of who is in the job, their personal qualifications or their performance.
[87] Mr. MacCrimmon determined that the medical advisor position had a total value of 370 points. The medical adjudicator was valued at 313 points. The only difference in the total value of the two positions arose from the values Mr. MacCrimmon attributed to the decision making and education factors for each position. Mr. MacCrimmon accorded 125 points to the advisors for the education factor, and 80 points to the adjudicators. He attributed 50 points to the advisors for decision-making, and 43 points to the adjudicators.
[88] In his report, Mr. MacCrimmon stated that the evaluation scores by themselves do not provide clear direction on the extent of the wage loss that results from the discrimination identified in the December 2007 decision. They simply confirm the appropriate pay relationship, that is, that pay for the Advisor should be somewhat above pay for the Adjudicator.
[89] Mr. MacCrimmon stated that he was not provided with specific salary data for these jobs or any other jobs. Therefore, he was unable to quantify what the appropriate wage differential between the advisor and the adjudicator position would be, based on the relative job values of the positions. However, he provided an opinion, based on several decades of experience conducting compensation surveys and designing salary structures for employers throughout Canada and North America. His opinion was that in most cases, any two jobs that are 57 points apart and in the 300 total point range would be about two pay grades apart (and perhaps only one). For typical salary structures, this represents a salary differential in the range of 15% to 25%, in Mr. MacCrimmon's opinion. That is to say, he stated, the pay range maximum for the Advisor would be about 15% to 25% higher than for the Adjudicator.
Do the Results of Mr. MacCrimmon's Job Evaluation Study Establish that the Complainants Suffered a Wage Loss as a Result of the Discriminatory Conduct?
[90] Mr. MacCrimmon was forthright in explaining the limitations of his study. His first concern was that making one-on-one job comparisons, such as the one that he was asked to do in the present case, can often later lead to inequities and inappropriate pay relationships that are difficult to justify and become difficult to administer. He stated that for that reason, a one-to-one job comparison would not be adopted by professional compensation managers. Rather, the typical approach would be to formally and objectively evaluate a representative sample of jobs within the work unit. An internal pay trend line would then be calculated which would provide a means of determining pay for jobs within the organization. This would support internal consistency and fairness.
[91] In cross-examination, Mr. MacCrimmon stated that he would be concerned about the potential for inequities and inconsistencies if the results of his study in the present case were to be implemented. He stated that using his study to determine wage adjustments could result in the adjudicators' managers, for example, being paid less than the adjudicators for the relevant period of time.
[92] In re-examination, Mr. MacCrimmon was asked whether he thought his study had produced an accurate result. Mr. MacCrimmon responded that based solely on the comparison between the advisor and the adjudicator positions, his evaluation provided an accurate measure of the difference in value between the jobs. However, he also stated that "to simply make an adjustment based on one job-to-job comparison is not the way that a professional person would set up the salary structure and determine what the pay relationship should be".
[93] Mr. MacCrimmon further testified that additional information about the positions might well affect the values that he assigned to them. He conceded, in cross-examination, that if he had been permitted to perform the study in his preferred manner, he would have interviewed people in the CPP Disability Unit. He would have obtained more information about the positions and the amount and percentage of time spent performing the various tasks. He would have obtained more up-to-date job descriptions. That information, he stated, could have made a difference in the values that he assigned to the positions.
[94] In cross-examination, Mr. MacCrimmon also admitted that his estimate of the appropriate wage differential between the advisors and the adjudicators was speculative. He stated that it was based on his past experience in performing numerous job evaluations. Mr. MacCrimmon admitted that his past experience did not necessarily inform him about what the specific result would be in the present case. He stated that to properly make the connection between the job evaluation and the rates of pay, one would follow the approach that he recommended which is to develop a pay trend line on the basis of a comparison of the relative value of a representative sample of jobs within the organization.
[95] In re-examination, Mr. MacCrimmon stated that although his estimate of the wage differential was speculative, it was based on extensive experience in the field. That experience led him to assert that when, as in the present case, two positions in the 300 point range are approximately 20% apart in point ratings, they are usually a couple of pay grades apart.
[96] When asked by counsel for the Respondents, Mr. Bendin, what weight should be given to his opinion in light of the limitations and concerns he had expressed about his study, Mr. MacCrimmon stated the following:
Mr. MacCrimmon: Well, you'll have to decide. I was given, I made, as he just mentioned, I made my report based on the information I was given. I was asked to render a judgment. So I said, this is the information I'm given, and this is, this is the result. But, I think there's a better way of doing it. So, I rendered my opinion.
Mr. Bendin: So if you'd had your druthers, you would have done this completely differently.
Mr. MacCrimmon: I would have had more time and more information.
[97] In re-examination, Mr. MacCrimmon stated that he stood by his report, nonetheless.
Mary Daly's Critique of Mr. MacCrimmon's Study
[98] Mary Daly was qualified on consent by the Tribunal as an expert in classification, compensation and organizational design. She testified that Mr. MacCrimmon's study did not provide reliable results regarding potential wage loss. The essential points of her critique may be summarized in the following way:
(1) The job evaluation process followed by Mr. MacCrimmon did not produce reasonably accurate results.
(2) The job evaluation tool used by Mr. MacCrimmon did not produce reasonably accurate results.
(3) Mr. MacCrimmon's speculation regarding the pay differential was unfounded.
(1) The Job Evaluation Process
[99] In her expert report and her testimony before the Tribunal, Ms. Daly described the systematic process that experts follow when they are measuring the relative worth of jobs within an organization. She described the process as essentially the professional standard for job evaluation studies. Ms. Daly assessed Mr. MacCrimmon's job evaluation study on the basis of this process.
[100] The first step in the process is to interview managers. Ms. Daly stated that the job evaluation process begins and ends with the managers who are responsible for managing the work and the workforce to produce business results and to fulfill the purpose of the organization. An understanding of the work and the workforce allows an evaluator to discern the most prominent realities of the work, in the way that "depth of field" in photography provides a means of bringing target objects into focus. Ms. Daly testified that without management consultation to reveal the business frame within which the work is done, the job evaluation plan or job evaluation results cannot meaningfully reflect the work.
[101] In cross-examination, Ms. Daly was asked how she dealt with the possibility that management might not be telling the truth. She responded that her initial step in the evaluation process would also include conversations with employees, supervisors and unions. She stated that she tests the perspectives that have been provided to her by obtaining multiple perspectives from multiple functions at multiple levels. She does not rely on any single source of information. In that way, she is able to piece together a coherent and accurate picture of how the organization values the work that is performed by its workforce.
[102] Ms. Daly testified that another important part of ensuring that the job evaluation results are accurate in the public service is to compare jobs both within and outside of the particular work unit. Within a unit such as the CPP Disability Benefit Unit in the core public service, there is a hierarchy of occupational groups. There is also a hierarchy within the Occupational Group or Classification that extends across the core public service. As a result, the job evaluation study must compare positions both within the Unit and within the Occupational Group or Classification. This is because adjudicators, for example, will look both within the CPP Disability Benefit Unit to see if they are being treated fairly, and also outside the Unit to see if they are being treated fairly relative to other PM's or NU's elsewhere in the public service. An evaluation that fails to take into account relativities within the Unit as well as across the public service will not accurately reflect the value of the job to the public service as a whole, or to the CPP Disability Benefits Unit.
[103] Ms. Daly stated that as a result of the constraints placed on his study, Mr. MacCrimmon was not able to benefit from contextual information about the CPP Disability Program, its processes, or related and connected work. He was not able to interview management, supervisors or employees to obtain an accurate picture of how the organization values the work in the Unit. He did not have information about work volumes, how work flows from one stage to the next, or what the nature of the work was in Ottawa versus other offices. He did not have information about the work of other nurses or program administrators throughout the public service who performed work of a similar nature to the adjudicators. He did not have any information other than the documents that he was given. In short, Mr. MacCrimmon simply did not have enough information to perform an accurate and reliable job evaluation.
[104] Ms. Daly testified that the job descriptions and the Tribunal decisions did not provide sufficient information for an accurate job evaluation to be performed. The job descriptions were very different lengths. The adjudicators' job description was much longer and more detailed than that of the advisor. The advisors' description was also much older than that of the adjudicators. She stated that it was like looking at the adjudicators' job with an electron microscope, and looking at the advisors' job with the naked eye. One does not have the chance to understand the full value of the work if they are unevenly treated in terms of job documentation.
[105] With respect to Mr. MacCrimmon's use of the Tribunal's 2007 decision, Ms. Daly stated that Mr. MacCrimmon did not provide a specific explanation of how he used the findings from the decision to evaluate the jobs. It seemed to her that he selectively used descriptions of the work from the decision, and the work descriptions, and was unable to say which he used and where, in the evaluation of the jobs. By way of example, Mr. MacCrimmon did not explain what use he made, if any, of the Tribunal findings that the adjudicators in Manitoba and Saskatchewan prepare for and appear before the Review Tribunal. Did he attribute that responsibility to all of the adjudicators? To do so would have been an error. Not all adjudicators appear before the Review Tribunal and it would distort the value of the adjudicators' position to attribute that responsibility to all adjudicators.
[106] Ms. Daly stated that Mr. MacCrimmon was not able to explain how he used the Tribunal's decisions in his evaluation of the positions. He did not provide a sufficiently detailed rationale to support the ratings assigned to a job. Therefore, the Tribunal had insufficient information upon which to assess the reliability of his results.
(2) The Job Evaluation Tool
[107] Ms. Daly took issue with Mr. MacCrimmon's use of his own generic job evaluation tool. She stated that a generic point factor plan cannot meaningfully reflect the nature and value of work involved in the adjudicator and advisor roles. Important aspects of the professional nature of the work of the adjudicators and advisors are not effectively captured in the generic plan.
[108] Ms. Daly also stated that the MacCrimmon job evaluation tool is designed to capture the full range of work within an organization and therefore, cannot have the level of detail and focus required to distinguish the differences between two specialized professional roles. The work measured by Mr. MacCrimmon is just a portion of the work of the unit, leaving a large part of the available value scale unused, and therefore understating the significant differences that exist between the values of the jobs reviewed.
(3) The Pay Differential
[109] Ms. Daly observed that Mr. MacCrimmon arrived at a total point difference between the two positions and then speculated on what the link might be to a salary structure.
[110] She explained that there are a number of problems with this approach. Firstly, it erroneously assumes that there is a single generic approach to determining compensation based on point banding. Ms. Daly stated that every organization has a unique approach to job evaluation, job evaluation ratings, how they cluster their ratings, how they do their point bands, and what the salary lines are that correspond to the point bands.
[111] To explain what she meant, Ms. Daly stated that a good job evaluation design will result in some reasonable pattern, whereby those jobs that are highly valued are paid more than those jobs that are of lower value. Some time ago, organizations would provide a fixed number of dollars per point. But that meant that the employer would be paying a job with 312 points more than a job that had 311 points. That system did not make sense since job evaluation is not precise enough to justify such pay differentials. Instead, organizations now create point bands whereby the positions with point ratings between 150 - 200, for example, constitute a "band" of notably similar value. They are paid the same.
[112] The clusters of point ratings and resulting point bands are different in every organization, depending upon a number of factors, including for example, whether the organization has a lot of junior or senior level jobs. Some point ratings may cluster in certain ranges more than others. Every organization has its own pattern of point ratings, its own approach to establishing the point bands and the corresponding salary rates. For that reason, Ms. Daly stated that it was inappropriate for Mr. MacCrimmon to use generalizations about the relationship between points and salaries in other organizations to arrive at a relatively precise conclusion regarding a specific organization, namely the CPP Disability Benefits Unit. Using generalizations based on experience with other organizations is likely to result in erroneous conclusions, in Ms. Daly's view.
[113] In addition, Ms. Daly stated that Mr. MacCrimmon's conclusion regarding pay rates makes a significant unfounded leap that is not based on the detailed analysis required to determine the compensation implications of a job evaluation.
[114] Finally, Ms. Daly stated that Mr. MacCrimmon's estimate of the appropriate wage differential between the advisor and the adjudicator positions was based on a job evaluation process which, because of the restrictions that were placed on him, was fundamentally flawed. Therefore, it could not produce reasonably accurate results.
[115] For these reasons, Ms. Daly was of the view that Mr. MacCrimmon's estimate of the appropriate wage differential between the adjudicators and the advisors did not represent an accurate reflection of what the adjudicators would have earned had they been paid commensurate with the professional nature of their work.
Ms. Daly's Credibility and Independence
[116] The Complainants and the Commission alleged that Ms. Daly was not a credible or independent expert witness. Therefore, her evidence in its entirety should be given no weight. They based their assertion on the following: (1) Ms. Daly admitted that part of the foundation of her criticism of the MacCrimmon report was that he accepted the findings made by the Tribunal in December of 2007 as one of the factual bases of his study whereas she would have done the study differently; and (2) Ms. Daly admitted to having been influenced by counsel for the Respondents in the manner in which she presented her report.
[117] With respect to the first issue, Ms. Daly testified that she thought that the Tribunal's finding that the advisor and the adjudicator perform substantially similar work was a qualitative assessment that needed to be tested. She agreed that part of her critique of Mr. MacCrimmon's report was that he accepted the Tribunal's findings in that regard whereas she would have subjected them to empirical analysis. Counsel for the Complainants stated that this undermined the entire validity of Ms. Daly's critique of Mr. MacCrimmon's report. I disagree.
[118] Firstly, I do not think that Ms. Daly was suggesting that the Tribunal's findings with regard to the discriminatory practice were erroneous or open to challenge on an empirical basis. Rather, she thought that the question of whether there was wage loss resulting from the discriminatory practice must be empirically tested, instead of drawing that inference from the Tribunal's decision. I agree with Ms. Daly on this point.
[119] In the December 2007 decision I found that as a result of the discriminatory practice, the Respondents failed to provide the nurses with remuneration commensurate with their professional qualifications. This does not mean that I found a wage loss resulting from the discriminatory practice within the meaning of s. 53(2)(c). It means that the adjudicators should have been remunerated as nurses. If it is established that there is a gap between the remuneration provided to them as program administrators and the remuneration that would have been provided to them as nurses, they must be compensated for that wage loss. I accept Ms. Daly's evidence that the existence and extent of a wage gap must be empirically determined.
[120] Secondly, with respect to Mr. MacCrimmon's use of the Tribunal's findings, I think that Ms. Daly's critique was based on a concern that the findings did not provide enough information for an accurate or reliable job evaluation. In that regard, Mr. MacCrimmon shared Ms. Daly's concern. He stated that he would have preferred to have more information. He also stated that additional job information might well make a difference in the relative values of the two jobs. Thus, to the extent that Ms. Daly was attacking the use of the Tribunal's decision in place of obtaining full job information in order to do a reasonably reliable job evaluation, I think she has Mr. MacCrimmon's support.
[121] The findings made in the December 2007 decision supported a finding of liability. Liability was based on the Respondents' failure to provide a reasonable explanation for the prima facie case of discrimination. Those findings were not designed to establish the quantum if any, of discriminatory wage loss. They can be used to justify an inquiry into possible wage loss, but were not intended to quantify the wage loss itself. In essence then, the findings with respect to the job differences and similarities opened the door to the remedial stage of the inquiry. They did not provide the final determination on remedy.
[122] Therefore, I find that Ms. Daly's critique of the use of the Tribunal's findings as the sole basis for the determinations made in the MacCrimmon report was valid, and does not undermine the weight or credibility of her report.
[123] With regard to the second point, the Commission and the Complainants pointed to correspondence between Respondent counsel and Ms. Daly which suggested that the scope and format of the report was altered as a result of suggestions by the Respondent. Specifically, there are electronic mail exchanges between Ms. Daly and counsel for the Respondents indicating that Ms. Daly initially planned to consider whether the creation of a new subgroup for the adjudicators made sense and if so, what the best approach to determining compensation redress would be.
[124] Ms. Daly testified that she was told that there was not enough time to undertake a full analysis of this issue. There was no evidence that limiting Ms. Daly's mandate to an opinion regarding the MacCrimmon Report had any effect on the substance of her critique.
[125] The Commission asserted that Ms. Daly was influenced with respect to the content of her Report by external counsel for the Respondents. The external lawyer was a member of the private bar who was retained by the Respondents to assist in preparation for the litigation of the present case. Together with counsel for the Respondents and the Department of Justice, the external lawyer met with Ms. Daly on several occasions to brief her about the scope and legal parameters of the case.
[126] An electronic mail exchange between external counsel for the Respondents and Ms. Daly was entered into evidence in which the former suggested that Ms. Daly make some formatting changes to her Report. Ms. Daly initially stated that she did not communicate with this person regarding drafts of her report and then later, when confronted with the electronic mail exchange in cross-examination, she admitted that external counsel had made a formatting suggestion with regard to her draft report.
[127] It is apparent from the text of the correspondence that the change that was suggested by external counsel was to move the conclusion from the beginning of her report to the end. Ms. Daly asserted that the change did not go to the substance of the Report. I accept Ms. Daly's testimony in that regard. It is consistent with the written documentation. Moreover, there is no evidence that either in face-to-face meetings or in electronic correspondence Ms. Daly was induced to change the content of her Report at the behest of external counsel for the Respondents.
[128] I do not find the initial inaccuracy in Ms. Daly's testimony as to whether she communicated with external counsel to the Respondents regarding changes to her report to be significant. It does not cause me to question the independence or validity of her opinion evidence. Given how relatively minor the requested change was, and the apparent urgency to complete the Report, I think it understandable that Ms. Daly might have forgotten that external counsel to the Respondents had suggested a formatting change. There was no indication in the evidence that changes or suggestions were made with regard to the content of the report.
[129] Finally, the Complainants and the Commission assert that Ms. Daly was not an independent expert witness. They allege that she was induced by the original Statement of Work to provide only testimony that would be favourable to the Crown's position. The initial Statement of Work stipulated that Ms. Daly was to provide strategic advice consistent with the Crown's theory of the case and to address the remedy portion of the decision in the most favourable light to the Crown and to the Canadian taxpayer.
[130] The final contract, which Ms. Daly signed, stipulated that the objective of the retainer was to provide strategic advice to address the remedy portion of the CHRT's decision of December 13, 2007. Also the expert was to provide strategic advice and assistance in rebutting the Complainants' expert report.
[131] In cross-examination, Ms. Daly stated that she received correspondence including the original Statement of Work when she was in the midst of meetings to brief her on the nature of the work and to clarify her mandate. The original Statement of Work did not figure prominently in her memory of the events at that time. She subsequently sent a letter to counsel for the Respondents, dated November 3, 2008, which was at the beginning of her assignment, indicating her understanding of the objectives of the retainer: she was to provide strategic advice on the remedy; critique the MacCrimmon report; and attend the hearing as needed. This is what was reflected in the Final Contract which Ms. Daly signed after she sent the November 3rd letter.
[132] Ms. Daly testified for the better part of two days. While her answers to questions were often lengthy and involved, she was professional, forthright and consistent in her testimony. The fact that she contracted to provide "strategic advice" on the remedy in this case did not concern me. Expert witnesses do provide strategic advice on the litigation of factual questions that are within their expertise. Ms. Daly denied having been influenced by Respondent counsel and asserted that providing biased testimony would be contrary to her professional ethics. In light of all of the surrounding evidence, I find Ms. Daly's statement in this regard to be credible.
Analysis of the Evidence and Findings
(1) The Job Evaluation Process
[133] Ms. Daly and Mr. MacCrimmon were in agreement with respect to many of the issues raised by Ms. Daly regarding the evaluation process. Although Mr. MacCrimmon did not think that a full diagnostic or an evaluation of all of the positions in the CPP Disability Benefits unit were necessary, he agreed that it would have been better to have the information suggested by Ms. Daly as well as to have undertaken an evaluation of more than just the two positions.
[134] Mr. MacCrimmon also stated that accurate and defensible job evaluation relies primarily on the objectivity and consistency of the evaluators and on their judgment as they interpret the facts. I have no doubt that as the sole evaluator in the study, Mr. MacCrimmon exercised the utmost of objectivity and consistency.
[135] However, there were other problems with the job evaluation process, as identified by Ms. Daly, which rendered it improbable that the results were reasonably accurate. Mr. MacCrimmon did not have access to important job information through interviews with incumbents, supervisors and managers. The job description for the advisor was dated and lacked the detail provided in the 2006 adjudicator description. Mr. MacCrimmon and Ms. Daly agreed that additional job information could make a difference to the values that were assigned to the jobs. Mr. MacCrimmon and Ms. Daly also agreed that to produce results that can be relied upon to make fair and equitable decisions with regard to compensation, one should not compare only two positions, as was done in the present job evaluation study.
[136] As a result of the limitations that were placed on Mr. MacCrimmon, over which he had no control, Mr. MacCrimmon was unable to obtain all of the information and data necessary to undertake an evaluation that would yield reasonably accurate results. Without additional job information than what was provided to Mr. MacCrimmon and with only two jobs being compared using a generic job evaluation tool, the Tribunal is simply not getting a reasonably reliable estimate of the relative value of the relevant positions.
[137] Moreover, Mr. MacCrimmon did not provide the Tribunal with sufficient information as to how he used the data from the Tribunal decisions and the job descriptions to arrive at his conclusions. As a result, I am unable to conclude, on a balance of probabilities, that the results of the study are reasonably accurate.
(2) The Job Evaluation Tool
[138] The two experts disagreed about whether the use of a tailored job evaluation plan would make a difference to the results of the study. Mr. MacCrimmon testified that in his experience, there was little difference in the results of a job evaluation whether a custom-made or a generic job evaluation tool was used. Ms. Daly, on the other hand, testified that a generic point factor plan cannot meaningfully reflect the nature and value of work involved in the adjudicator and advisor roles.
[139] As has been noted, absolute precision is not required in the assessment of damages (NPF, supra, at para. 44). Therefore, I accept Mr. MacCrimmon's expert opinion that his use of a generic job evaluation tool would not, in itself, render the results of his study unreliable for the purposes of the present analysis. However, as suitable as the job evaluation tool may have been, it cannot compensate for the serious deficiencies in other aspects of the study that were identified by both witnesses. These deficiencies vitiate the reliability of the study results to the point where it cannot be said on a balance of probabilities that they are reasonably accurate.
(3) The Pay Differential
[140] Mr. MacCrimmon used his extensive experience in job evaluation to estimate the appropriate wage differential between the advisor and the adjudicator positions as being in the order of 15 - 25%. He admitted that the estimate was speculative inasmuch as it was not based on the actual point banding or salary structures of the public service or the CPP Disability Branch.
[141] Ms. Daly's criticism of this approach is outlined above. Her conclusion was that Mr. MacCrimmon's assessment of the pay differential was unfounded and based on erroneous assumptions.
[142] I am persuaded by the logic and detailed explanation provided by Ms. Daly as to why it is inappropriate to make a generalized assumption about the point banding structure and the corresponding salary structure. Each organization has its own approach to point banding. Therefore, it is inappropriate to use generalities on the job evaluation landscape to arrive at a relatively precise conclusion.
[143] Mr. MacCrimmon was not able to provide any assurances that his conclusion was based on an understanding of the public service's point banding and salary structures. Indeed, Mr. MacCrimmon stated that his experience with the organizational structure of the federal public service is very limited. Mr. MacCrimmon acknowledged that his conclusion was speculative and not based on any information relevant to this particular workplace. Therefore, I accept Ms. Daly's critique of Mr. MacCrimmon's estimate of the pay differential.
[144] Moreover, Mr. MacCrimmon qualified his evidence with respect to the pay differential by stating that, in practice, compensation is not set on the basis of one-to-one job comparisons such as the one he performed. This is not the way pay rates are established. The results would be anomalous and lead to unfairness and inconsistencies in pay among employees within an organization. He warned against the use of his job evaluation study to determine the appropriate pay rates for the adjudicators.
[145] And yet, this is precisely what counsel for the Complainants suggested that the Tribunal do. Counsel argued that we should use the differential of 15 - 25% suggested by Mr. MacCrimmon, on the basis of his job-to-job comparison, to determine the appropriate CHN or Nurse Consultant level to which the adjudicators should be assigned. This would not only establish the wage loss for the past, based on a comparison with the salaries for that level of CHN or Nurse Consultant in the past, but would also establish their wages for the future. According to the Complainants' own witness, this would not be the appropriate approach to take in this case.
[146] On the basis of the evidence, I find that the Complainants have not established, on a balance of probabilities, that Mr. MacCrimmon's assessment of the wage differential was reasonably accurate. It was speculative and based on job evaluation results that were not reasonably accurate.
Conclusion and Order
[147] The Complainants attempted to show, based on the job evaluation results, that the appropriate wage differential between the advisors and the adjudicators is 15 - 25%, rather than the 50% difference that was found to exist in the liability phase. On that basis, they argued that 25 - 35% of the difference between the advisors' and the adjudicators' salaries constituted wage loss resulting from the discriminatory practice. For the reasons set out above, I find that the results of the MacCrimmon study do not support that conclusion. The results of the study are not reasonably accurate or reliable.
[148] The Commission requested that, in the event the Tribunal did not accept the MacCrimmon report, it retain jurisdiction over the matter and order the Respondent to conduct a job evaluation study. I decline to do so. The Complainants had the burden of establishing the existence and quantum of wage loss. They failed to do so.
[149] At the outset of the remedy hearing in July of 2008, the Complainants took the position that no further evidence was needed to establish the existence or quantum of wage loss. The Respondents, on the other hand, had the results of a job evaluation study which they were prepared to present. At the hearing, Complainant counsel challenged the admissibility of this study on grounds that were unrelated to the quality of the evidence. When that evidence was withdrawn, a request was made by the parties to adjourn the hearing to provide them with more time to obtain evidence regarding the wage gap between the advisors and the adjudicators. That request was granted.
[150] During the adjournment, the Complainants did not seek the intervention of the Tribunal to obtain access to additional information for their expert to perform his job evaluation study.
[151] The results of the Complainants' study were presented at the resumption of the hearing in December of 2008. As noted, they do not establish, on the balance of probabilities, that wage loss resulted from the discriminatory practice. Recently the Federal Court has indicated that providing the parties to a dispute with numerous opportunities to muster additional evidence may constitute a breach of the duty to provide a fair hearing (Canada Post Corporation v. Public Service Alliance of Canada, 2008 FC 223 at para. 264-265). The Court stated that a fair hearing is not a continuing process. A fair hearing is one where a party knows the case against it and has an opportunity of addressing that case within a reasonable time. At that point, the Tribunal has a duty to adjudicate upon the case.
[152] Although the Federal Court made the above-noted comments in the context of a finding on liability, I am of the view that they apply with equal force to hearings on remedy. There must be some finality to litigation.
[153] In my view then, it would not be appropriate to further postpone the determination on the issue of wage loss to permit yet another job evaluation to be completed.
[154] For these reasons, no order for compensation for wage loss under s. 53(2)(c) will be issued.
III. COMPENSATION FOR PAIN AND SUFFERING
[155] Section 53(2)(e) of the CHRA provides the Tribunal with the authority to award compensation for pain and suffering experienced as a result of the discriminatory practice. In the December 2007 decision, I noted that some of the Complainants testified about the frustration, demoralization and the loss of self-esteem that they experienced as a result of the Respondents' refusal to recognize their professional expertise. On that basis, I was prepared to order that some compensation should be provided to the Complainants. However, I indicated that the quantum of the award had yet to be determined.
[156] During the hearing on the remedy, the Respondents argued that I should not order that compensation be provided to all of the Complainants since I did not have a proper evidentiary basis to do so. They based their argument on the Tribunal's statements in PSAC v. Treasury Board, supra.
[157] PSAC v. Treasury Board involved a pay equity complaint filed on behalf of 50,000 employees. The Commission and Complainant counsel requested that compensation be provided for the pain and suffering experienced by the employees. The Tribunal stated that an award for pain and suffering required an evidentiary basis outlining the effects of the discriminatory practice on the individuals concerned. Since none of the complainants testified with regard to the hurt feelings that they experienced, there was no evidentiary basis for the award.
[158] The Tribunal also stated that the impact of delays giving rise to frustrations, maybe even sadness or anger, although legitimate reactions, did not measure up to the degree and extent of hurt feelings and loss of self-respect that s. 53(3), as it then was, is designed to address. The Tribunal further held that to grant an award for pain and suffering to some 50,000 employees would amount to an award for hurt feelings, en masse. This was not what was contemplated by s. 53(3) of the Act, in the Tribunal's view.
[159] The Federal Court upheld the Tribunal's decision in PSAC v. Treasury Board, and did not comment on its reasoning with respect to compensation for hurt feelings.
[160] I agree with the Tribunal's reasoning in PSAC v. Treasury Board. The evidence that I heard from some of the Complainants convinced me that some, but not all of the Complainants, should be compensated for the pain and suffering they experienced. Ms. Walden testified generally that the adjudicators felt angry, demoralized and humiliated as a result of the discriminatory practice. However, I am not able to say, on the basis of these statements, that each and every adjudicator experienced the same degree of pain and suffering, or indeed any suffering at all. I cannot attribute Ms. Walden's statements to each and every complainant.
[161] There may well be some adjudicators who did not feel aggrieved by the practice and therefore, should not receive an award. On the other hand, there may be individuals like Ms. Walden who experienced a great degree of pain and suffering, and should receive compensation for that. I simply do not have the evidentiary basis to make a determination as to the pain and suffering that may have been experienced by all of the nurses.
[162] I am, however, convinced on a balance of probabilities that Ms. Walden did experience pain and suffering as a result of the Respondents' discriminatory practice. She spoke of the humiliation that she felt when, year after year, she was not given credit for using her professional knowledge to assess claims. She felt demoralized, angry and frustrated. Her self-esteem was affected by the Respondent's refusal to recognize her as a health professional. Therefore, on the basis of Ms. Walden's evidence I find that compensation in the amount of $6,000 to Ms. Walden is appropriate.
[163] Ms. Palmer testified that when she moved from Ottawa to Manitoba to continue her work as an adjudicator, she did not apply for a Manitoba Nurse's license. She was told by her supervisor that she needed a nursing license from any Canadian province to be an adjudicator, but that it did not have to be from the province in which she was living. However, the Manitoba College of Nurses took the position, contrary to that of the Respondents, that medical adjudication constituted nursing and she was required to have a license from the province in which she was practicing. Consequently, the Manitoba College disciplined Ms. Palmer for practicing nursing in Manitoba without a Manitoba nursing license.
[164] Ms. Palmer stated that it was humiliating to be disciplined for not having the appropriate license when she had been told that a license from any province was sufficient to be accepted for a position as an adjudicator. She did not speak about the discipline for years because she was so upset and embarrassed. By failing to recognize that the adjudicators are performing professional nursing duties, the Respondents failed to recognize a key aspect of the adjudicators' professional status - the fact that they are subject to regulation by provincial self-governing professional bodies. I find, therefore, that Ms. Palmer's suffering was the result of the Respondent's discriminatory refusal to accord the adjudicators the same professional recognition and treatment that was accorded to the medical advisors.
[165] The Respondents are ordered to provide Ms. Palmer with compensation in the amount of $6,000 pursuant to s. 53(2)(e) of the CHRA.
[166] The Respondents are also ordered to pay interest on the awards of compensation for pain and suffering in accordance with Rule 9(12) of the Tribunals Rules of Procedure from the date of the complaints.
IV. LEGAL EXPENSES
[167] Counsel for the Complainants asked that the Tribunal award the represented Complainants compensation for the legal costs associated with the prosecution of their complaints. Those expenses include the cost of retaining a second lawyer in the latter part of the hearing on remedy.
[168] The preponderance of judicial authority supports the Tribunal's jurisdiction to award legal expenses under s. 53(2) of the Act (Canadian Armed Forces v. Mowat 2008 FC 118 (appeal to FCA pending)).
[169] Counsel for the Respondents argued that the Tribunal should award legal expenses only in exceptional circumstances. Such exceptional circumstances include cases where the Commission withdrew from the case, where a conflict existed between the position of the Commission and the complainant, or where the case was complex or involved a novel question (Premakumar v. Air Canada [2002] C.H.R.D. No. 17). Consideration has also been given to the value of the private counsel's contribution (Grover v. Canada (National Research Council [1992] C.H.R.D. No. 12), and to whether the Commission counsel and private counsel fulfilled different roles at the hearing (Hinds v. Canada (Employment and Immigration Commission), (1988), 10 C.H.R.R. D/5683.
[170] It should be noted, however, that in Premakumar, the Tribunal decided to award legal costs in the absence of the exceptional circumstances, but where counsel had made a valuable contribution to the case.
[171] In the present case, counsel for the Complainants made valuable contributions to the case. As a result of Mr. Armstrong's involvement and efforts in representing over 400 Complainants residing in all parts of Canada, they were able to present their case in a logical and clear manner. In addition, the case involved a novel approach to provisions of the CHRA. It is highly unlikely that the Complainants would have been able to achieve the degree of coordination, communication and legal analysis necessary to present their case without the assistance of private counsel. Therefore, I find that the costs of retaining the services of Mr. Armstrong are expenses incurred as a result of the discriminatory practice, and I order the Respondents to compensate the Complainants for reasonable counsel costs for Mr. Armstrong's services.
[172] Counsel for the Complainants argued that the way in which the Respondents conducted the case made it necessary to have not only one, but two counsel present in the remedy stage of the hearings. They argued that the Respondents were dilatory in their responses to requests for documents and for information, refused to comply with the orders of the Tribunal in the December 2007 decision, and provided large numbers of documents for review in the middle of the hearing.
[173] I disagree that the above-noted actions on the part of the Respondents justify an award of compensation for the expense of retaining two lawyers. It is indeed lamentable that on at least one occasion, the Respondents failed to fulfill their duty to disclose all arguably relevant documents on a timely basis, thereby necessitating some last minute overtime on the part of Complainant counsel. However, given the active participation of Commission counsel in this case, I cannot agree that enlisting the services of another lawyer was necessitated by this conduct.
[174] Nor was it necessitated by the other actions taken by the Respondent in this case. As was their right, the Respondents asserted privilege over the expert's file until she took the stand. As a result, Complainant counsel was forced to review a number of documents in the evenings during one of the weeks of hearing. An adjournment of several hours could have been requested to deal with this issue. Similarly, the fact that the Respondents refused to negotiate a change in the Complainants' classification pending a decision on the judicial review application in this case did not necessitate the assistance of second counsel. There is no indication that the Complainants had commenced time-consuming contempt or enforcement proceedings in the Federal Court to enforce the Tribunal's order.
[175] Complainant counsel chose to enlist the services of the other lawyer in his firm. He thought that this would assist him to better present the remedy portion of the case. He may well be right. However, I find that the cost of the second lawyer's services was not an expense that resulted from the Respondent's discriminatory practice within the meaning of s. 53(2).
[176] Therefore, based on the considerations above, I find it appropriate to order the Respondents to compensate the Complainants for reasonable counsel costs for Mr. Armstrong's services only. I encourage the parties to come to an agreement on the amount, but will retain jurisdiction on this point should they fail to agree.
[177] I further order that interest be paid on the costs award from the date of this decision to the date of payment of the award, calculated in accordance with Rule 9(12)(a) of the Tribunal Rules of Procedure.
"Signed by"
Karen A. Jensen

OTTAWA, Ontario
May 25, 2009
PARTIES OF RECORD



TRIBUNAL FILE:



T1111/9205, T1112/9305 and T1113/9405

STYLE OF CAUSE:

Ruth Walden et al. v. Social Development Canada, Treasury Board of Canada and Public Service Human Resources Management Agency of Canada

DATE AND PLACE OF HEARING:


July 28 to 31, 2008
December 9 to 12, 2008

Ottawa, Ontario


DECISION OF THE TRIBUNAL DATED:

May 25, 2009

APPEARANCES:



Laurence Armstrong
Heather Wellman

For the Complainants

Ikram Warsame

For the Canadian Human Rights Commission

Patrick Bendin
Claudine Patry

For the Respondents