The Petitioners, female communications operators at the Vancouver Police Department, sought judicial review of a Human Rights Tribunal’s decision dismissing their claims that they were paid less than male communications operators doing the same work at the Vancouver Fire Department contrary to sections 12 and 13 of the Human Rights Code (the “Code”). The Tribunal concluded that for the purposes of wage discrimination under section 12 of the Code, the City, who employed the Fire Dispatchers, was not the Petitioner’s employer and therefore no wage-discrimination between employees of different sexes could have occurred.

28. October 2003 0

Administrative law – Human rights complaints – Discrimination – Wage disparity – Gender – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Standard of review – Reasonableness

Reid v. Vancouver (City), [2003] B.C.J. No. 2043, British Columbia Supreme Court, September 3, 2003, Garson J.

Section 12 of the Human Rights Code, R.S.B.C. 1996, c.210, prohibits an employer from paying an employee of one sex a lesser amount than an employee of the other sex for same or similar work. The Petitioners, female communications operators at the Vancouver Police Department, alleged before a Human Rights Tribunal that they were paid less than male communications operators doing the same work at the Vancouver Fire Department. The Tribunal’s decision to dismiss their complaint turned on the finding that the police communications operators were employed by the Vancouver Police Board, whereas the Fire Department communications operators were employed by the City of Vancouver, and hence they had different employers. The Tribunal also dismissed the complaint under section 13 which prohibits discrimination against a person regarding employment because of the sex of the person, on the basis that the Petitioners had not established a prima facie case of sex discrimination. The Petitioners applied for judicial review.

The crux of the issue before the Tribunal was whether the Petitioners and the Fire Department communications operators have the same employer. The City of Vancouver (the “City”) asserts that they do not; that the Police Board, not the City, is the Petitioners’ employer. The issue was framed as a single question: “Who is the Petitioner’s employer?” – and the standard of review was determined on that basis.

The appropriate standard of review is always determined with reference to the factors of the pragmatic and functional approach. In this case, the exercise of statutory interpretation is “bundled” inextricably with the ultimate issue. Determining who the “employer” is, is not a pure question of law but fact-specific. In enacting the Code, the legislature used the term “employer” but chose not to define the term, thus leaving its definition open to fit the circumstances of each case.

The Code does not contain a privative clause or statutory right of appeal but, in this case, the Court found this to be a neutral factor in determining the standard of review. With respect to the Tribunal’s expertise, the task was to determine whether the functions performed by the City constituted indicia of employment within the context of the Code. The expertise of the Tribunal in drawing evidentiary inferences from the findings of fact would suggest more deference. The purpose of the statute as it applied to this case was adjudicative, and would therefore be a factor weighing in favour of less deference. Finally, the nature of the problem was one of mixed fact and law, and the result depended heavily on the various findings of fact and inference drawn from the evidence. Consequently, this factor suggests a more deferential standard of review. On the basis of these factors, the proper standard of review in this case was reasonableness.

Applying the reasonableness simpliciter standard to the Tribunal’s section 12 decision, the Tribunal’s finding in respect to responsibility for classification and job evaluation was not unreasonable. The relationship between the Board and the City was complex and the Tribunal found that the City’s responsibility stemmed from its role as a funder and a service provider, but that it was not the controlling mind in respect to compensation and classification. However, the City’s overall responsibility for funding ought to have been given consideration by the Tribunal.

While explicitly purporting to employ a liberal analysis as required by the Code, the Tribunal based its conclusion on two factors (the Board’s responsibility for collective bargaining and for classification) to conclude that the City was not the Petitioners’ employer. The Court found that this conclusion was not reasonably supportable. The Tribunal had overlooked the importance of the financial relationship between the City and the Board which resulted in a conclusion that was not reasonably supported by the findings of fact and was inconsistent with a flexible purposive interpretation of the Code.

Accordingly, the Tribunal’s section 12 decision was set aside in part and remitted to the Tribunal for reconsideration.

On the section 13 issue, the Tribunal dismissed the complaint on the basis that it was not discriminatory for one employer, the Board, to pay different wages to its employees than a different employer, the City, paid to its employees. Additionally, the Tribunal found that the City had not caused or influenced the Board to pay or provide inferior wages or benefits to the predominantly female complainants than those of the fire dispatchers and that the complainants failed to establish their assertion that the creation of their positions was a civilianization by the City and Board of duties formerly performed by police officers, which was tantamount to feminization and therefore sex discrimination.

The Court, again applying the functional and pragmatic approach, considered the question of whether the Board or City discriminate in respect to the Petitioners’ employment, contrary to section 13. Applying the reasonableness simpliciter standard to the Tribunal’s section 13 decision, the Court found that the Tribunal’s findings were logically supported by the evidence and found no basis to disturb the decision.

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