On an application for judicial review of a decision of a Human Rights Commissioner (the “Commissioner”), the court found that the Commissioner erred in law in finding gender discrimination against the complainant with respect to her rate of pay as a summer police constable. However, the court found that the Commissioner’s decision that the complainant was discriminated against in employment on the basis of gender was supported by the evidence and there was therefore no reviewable error with respect to that issue.

27. July 2004 0

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Gender – Burden of proof – Judicial review – Standard of review – Correctness – Reasonableness simpliciter

DeWare v. Kensington (Town), [2004] P.E.I.J. No. 40, Prince Edward Island Supreme Court – Trial Division, May 28, 2004, Matheson J.

The Defendant Town of Kensington brought an application for judicial review of a decision of a Human Rights Commissioner (the “Commissioner”) of the PEI Human Rights Commission with respect to a complaint filed by Ms. DeWare alleging that the Town discriminated against her on the basis of sex and marital status in failing to hire her as a summer constable, contrary to section 6 of the PEI Human Rights Act, R.S.P.E.I.,1988 Cap. H-12 and that the Town further discriminated against her in that she was paid a different rate of pay than a male officer for substantially the same work, contrary to section 7 of the Act. The Commissioner found in favour of the complainant on both issues and the Town applied to have the decision set aside.

The court held that the standard of review was correctness on issues of law and reasonableness simpliciter on questions of fact.

With respect to the allegations of pay discrimination, the Commissioner found that when the complainant was hired for the position of casual constable in November 1999, she was paid at the rate of $8.00 an hour, although she was expected to perform the same services as another male constable who was paid at the rate of $10.00 an hour. The evidence established that casual constables earned $8.00 per hour and summer constables earned $10.00 per hour. The one male constable who earned $10.00 an hour as a casual officer from September to November 1999 was regarded as an exceptional case because the Town wanted to retain him for future employment. The court found that the Commissioner erred in concluding that by paying the one male officer $10.00 an hour, the Town was in fact increasing the pay rate for casual constables to $10.00 an hour across the board. Based on the evidence, the court concluded that that person’s pay rate was a one-time situation designed specifically to retain him. Without further evidence, the Commissioner’s conclusion that the pay rate was altered for all casual constables was not reasonable. Without a valid finding that the Town had in fact increased the rate of pay for all casual constables, there was no underpinning for the Commissioner’s finding of “pay discrimination” against the complainant on the basis of gender. Therefore, the court found that the Commissioner erred in reaching that conclusion.

The allegation of employment discrimination was based upon the complainant’s allegation that she was discriminated against because of her gender when she failed to obtain the position of summer constable. The Commissioner concluded that the complainant had established a prima facie case of discrimination because she was qualified for the particular employment, she was not hired and a male candidate who was no better qualified than her obtained the position. Upon finding a prima facie case of discrimination, the burden to show a credible and non-discriminatory reason for failing to hire the complainant shifted to the Town. The Commissioner held that the Town had failed to provide such reasons. The court noted that there was evidence before the Commissioner which would support the conclusion that the complainant was not hired for the summer constable position due to her gender. The test on findings of fact was one of reasonableness. The court held that the Commissioner’s decision in this regard was supported by evidence and a tenable line of reasoning and he therefore made no reviewable error on that issue.

The Town’s application for a judicial review was therefore successful in relation to the finding of gender discrimination regarding pay but failed in relation to the finding of gender discrimination in the hiring process.

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