Ottawa - Canada Post today filed an appeal with the Federal Court seeking to quash a decision by the Canadian Human Rights Commission that, prior to 2002, the Corporation had participated in "systemic discrimination" in the setting of wages for a group of Public Service Alliance of Canada (PSAC) members contrary Section 11 of the Canadian Human Rights Act.
"Throughout this process Canada Post has maintained emphatically that there has been no systemic sex discrimination in our wage setting under Section 11 of the Canadian Human Rights Act," said Lynn Palmer, vice-president, Human Resources, Canada Post. "We also believe we provided ample evidence to prove that position, as did a number of eminent expert witnesses. We have always maintained --and we continue to maintain-- that any wage gap that may have existed in the past was due to the collective bargaining power of two different unions operating in distinct work areas and that it had nothing to do with gender discrimination."
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In 1983, the Public Service Alliance of Canada filed a complaint with the Canadian Human Rights Commission alleging that Canada Post discriminated in its wage setting with respect to a group of approximately 2300 of its clerical workers contrary to Section 11 of the Canadian Human Rights Act. PSAC compared the group of 2300 clerical positions to a subset of another union, the Canadian Union of Postal Workers, which contains nearly 14,000 women, the bulk of the female employees at Canada Post. A lengthy investigation by the Commission was completed in January 1992 and the Commission recommended that a Human Rights Tribunal be convened to deal with the matter. Hearings commenced before the Tribunal in February of 1993. Final arguments on the case were made in the spring of 2003.
"The Tribunal's decision appears to be very much divorced from the evidence presented," said Joy Noonan, partner, Heenan Blaikie LLP, who represented CPC before the Tribunal, "The Tribunal itself acknowledges that the job data, the job evaluation process, the resulting job information and the ultimate evidence on the alleged wage gap was ALL uncertain in nature but, instead of then finding that the Commission and PSAC had not proved their case, the Tribunal created a new, lower, standard of proof which they felt should apply to the case, calling it "lower reasonable reliability". On that basis, the Tribunal appears to try to justify a finding of liability and then discounts the damage award enormously to justify its actions. We also believe it erred in refusing to even consider Canada Post's evidence which demonstrated that any wage gap in existence was not due to gender but rather due to the different unions the groups belonged to and the separate and different contracts that had been bargained. "There are numerous and serious legal problems with this Decision, and Canada Post knew it had no option but to immediately seek the court's intervention."
Other issues of legal significance in the judicial review include:
That the comparator groups are not employed in the same establishment;
That the Commission and PSAC failed to actually examine the wage-setting system within CPC as a whole for any pattern of sex-based wage discrimination; and
That the Commission's own expert witness in the well-known Treasury Board case appeared for Canada Post in the case and testified that the job data, and job evaluation process performed by the Commission and PSAC did not meet any reasonable standard of reliability.
Qualified by this Tribunal as an expert in labour economics, Mark Killingsworth, Past Chair of Department of Economics, Rutgers University, New Brunswick NJ, prepared a comprehensive expert's report and was on the witness stand for seven full days answering questions in regards to why gender played no part in any differences in these wages.
"I am frankly astonished to now learn that all of the expert evidence I placed before the Tribunal was ignored in the decision handed down this morning," said Killingsworth. "If you do not make an honest attempt to address the evidence then it is very hard to understand how you could arrive at a sound decision."
Joy Noonan concluded, "The Decision is not supported by the evidence led, or in law and should be reviewed by the Courts. We feel quite confident that this ruling will be overturned on review by the federal court."
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