Canada (Human Rights Commission) v. Air Canada

On January 26, 2006, the Supreme Court of Canada issued a ruling allowing the Canadian Human Rights Commission to continue its investigation into a pay equity complaint brought by the Canadian Union of Public Employees on behalf of Air Canada's flight attendants. The complaint alleged that Air Canada discriminated against the predominantly female flight attendants by paying them less for work of equal value than the predominantly male pilots and mechanical personnel.

The case dragged on for 15 years, as the parties fought over whether flight attendants, pilots and mechanical personnel work in the same "establishment" within the meaning of section 11 of the Canadian Human Rights Act. Section 11 provides that it is discriminatory practice for an employer to establish differences in wages between male and female employees in the same “establishment” who are performing work of equal value. Section 10 of the Equal Wages Guidelines, adopted under the Act, states that employees of an establishment include all employees subject to a “common personnel and wage policy.”

Focusing on differences between the collective agreements that applied to each of the three bargaining units, the Canadian Human Rights Tribunal held that the three employee groups were not part of the same establishment and therefore the complaint could not proceed. The Tribunal's decision was upheld on judicial review, but was overturned by the Federal Court of Appeal. Air Canada appealed to the Supreme Court of Canada.

The Supreme Court dismissed the appeal. Noting that a broad approach must be taken to the interpretation of human rights statutes, the Court held that the definition of “establishment” in section 10 of the Guidelines should not be “viewed and applied as if it were an exhaustive definition” of establishment but that it should be seen as a “complementary provision which provides additional content and context for the application of the notion of ‘establishment’".

Thesearch for a “common personnel and wage policy”, the Court held, is simply a factual inquiry as to whether there is a common set of principles or a general approach taken by an employer to its employee/employer relationships, including collective bargaining. It is not appropriate to focus, as the Tribunal did, on the fine details ofeach collective agreement. The terms of collective agreements and employments contracts will necessarily vary with the particular bargaining unit or employee, andto use such differences as the focus of the inquiry would effectively equate "establishment" with "bargaining unit". This would underminethe purpose of section 11, which is to determine whether wages paid to women reflect an undervaluation based on systemic discrimination resulting not only in occupational segregation, but also in diminished bargaining strength, and likely diminished wages and benefits”.Air Canada’s interpretive approach, the Court held, would turn collective bargaining into a tool to consolidate discriminatory practices.

The Court also admonished Air Canada for its resistance to this pragmatic approach for almost 15 years, “creating enormous expense for itself and the public, and intolerable delay in wage equity, should the flight attendants ultimately succeed.”

The Court agreed with the Federal Court of Appeal’s conclusion that the three groups belong to the same establishment, sinceAir Canadatook acommon approach to collective bargaining, the administration of labour contracts, its methods of communications with unions and employees and its common negotiating strategies and concerns. As a result, it remitted the matter to the Commission to continue its investigation.

The Intervener, Communications, Energy and Paperworkers Union of Canada was represented by Peter Engelmann

Click here to read the Court's decision