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Friday, February 3, 2006

The Supreme Cout of Canada: RIGHTEOUS BIAS GRATUITOUS REMARKS - Canada (Human Rights Commission) v. Canadian Airlines International

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.

The 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.

1. 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.

2. 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.

3. 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.

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