The reasons for judgment in Canada (Human Rights Commission) v. Canadian Airlines International Ltd. released by the Supreme Court of Canada on January 26 are questionable on three grounds.
The case concerned the reach of equal pay legislation. The Canadian Human Rights Act
declares that the payment of different wages to male and female
employees in the same "establishment" for work of equal value is a
discriminatory practice. The broader the interpretation of
"establishment" the broader the reach of the legislation. The court
adopted a broad interpretation.
Air Canada flight attendants union launched a complaint in November
1991 claiming that the airline discriminated in the wages it paid
flight attendants. Air Canada argued that the flight attendants were
not employed in the same "establishment" as the mechanics and pilots
with whom the union sought to compare the value of their work and their
pay and a Human Rights Tribunal agreed. The union asked the Federal
Court to review the Tribunal's decision but that court would not
overturn it. On appeal to the Federal Court of Appeal the Tribunal's
decision was overturned and the matter sent back for a hearing into
whether the flight attendants were
paid less for work of equal value. Air Canada appealed that decision
to the Supreme Court. The appeal was heard last October. The Supreme
Court dismissed Air Canada's appeal.
The Canadian Human Rights Act
does not define "establishment". Air Canada argued that as flight
attendants, pilots and mechanics had had separate collective agreements
governing their pay for 60 years they were not in the same
establishment within the meaning of the Act. Finding that "flight
attendants, mechanics and pilots all work in the core business of Air
Canada, that personnel and compensation issues are under the direction
of the central human resources division of Air Canada, that general
corporate human resources policies apply to all three groups, and that a
single committee within Air Canada is responsible for coordinating the
process of negotiating collective agreements with all three bargaining
units" the court rejected Air Canada's argument.
The court held that "establishment" could not be held to mean "collective bargaining unit" as Air Canada was implicitly arguing.
As it would have been easy for the legislation to define
"establishment" as "collective bargaining unit" and the breadth of
collective bargaining units is to some degree under an employer's
influence and could thus be used to circumvent the legislation the
court was so far right. But the court's reasons practically identify
"establishment" with employer and if that is what parliament meant it
would have said it.
The case was decided on the principle, for which some precedent was
found in earlier Supreme Court decisions, that human rights legislation
should be interpreted so as to give it the broadest possible reach.
This is plainly wrong. Only a blinkered court could fail to recognise
that an interpretation supposed to strengthen human rights is in fact
an interpretation that strengthens government power, which in all other
contexts the courts will only do when plainly required by legislation.
Human rights legislation, however justified it may be, subjects
decisions that would otherwise be freely made to review and direction
by government. Where legislatures think it is required the courts
should strictly enforce it. They should not attempt to give it any
broader reach than a strict reading requires.
In giving its reasons the court indulged in a bit of the gratuitous
editorialising that courts are more and more prone to. It expressed
regret that Air Canada had resisted the definition of "establishment"
that the court had just adopted "for almost 15 years, creating enormous
expense for itself and the public, and intolerable delay in wage
equity, should the flight attendants ultimately succeed." Air Canada
had a perfect right to raise the issue, twice successfully, and, if the
15 years it took to decide it is regrettable, the courts, who have
complete control of their proceedings, should look to themselves.
The court's reasons were jointly written by Rosalie Abella and Louis
Lebel. Abella, though famously appointed a judge at the age of 29,
spent much of her time after that as variously Ontario Human Rights
Commissioner, head of the Ontario Labour Relations Board and running a
Royal Commission on Equality in Employment in Ontario. In the last
capacity she modestly notes in her Who's Who
entry that she "created the term and concept of employment equity". On
the issue of pay equity there is no question of a reasonable
apprehension of bias in Abella. There is a well know bias. Had Abella
any past links with the parties she would have had to recuse herself
because of a reasonable apprehension of a bias she might well have been
able to overcome. On this issue there could never have been any
question how she would decide the case. Air Canada never had a hope.
Whether the decision was right or wrong, that is regrettable.