The Court of Appeal upheld the decision by the British Columbia Human Rights Tribunal that female communications operators employed by the police department were not entitled to pay equity with their mostly male peers at fire department. The appropriate standard of review was reasonableness. The tribunal’s decision that the female communications operators were employed by the Vancouver Police Board and the fire dispatchers were employed by the City of Vancouver, and thus equity considerations did not apply as between the two groups, was reasonable.

25. October 2005 0

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

Reid v. Vancouver Police Board, [2005] B.C.J. No. 1832, British Columbia Court of Appeal, August 18, 2005, Donald, Lowry and Kirkpatrick JJ.A.

The Respondent Vancouver Police Board (the “Board”) sought an appeal of a decision of the Court on judicial review, where the judge substituted her judgment for the British Columbia Human Rights Tribunal (the “Tribunal”) in a case alleging wage discrimination on the basis of sex.

The Petitioners, female communications operators employed by the police department, filed a complaint against the City of Vancouver and the Board alleging wage discrimination with the mostly male dispatchers for the Vancouver Fire Department. The tribunal found that the Board alone was the employer of the Petitioners and therefore the complaint of disparate treatment could not stand.

On judicial review, the Court held that the tribunal erred on the test of reasonableness simpliciter when it adopted an unduly narrow approach to the question of co-employer status and remitted the case back to the tribunal for reconsideration. The Board appealed.

The appeal was allowed. The tribunal’s decision that the Petitioners were employed by the Board was reasonable. The tribunal undertook an extensive analysis of the acknowledged interdependence between the Board and the City, and considered the question of who employed the Petitioners in the context of the remedial purposes of the Human Rights Code: Canadian National Railway Co v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114. Human rights legislation is remedial in nature and is to be given such fair, large, and liberal interpretation as will best ensure that its objects are attained.

The essence of the Tribunal’s decision was its conclusion that the responsibility for the Petitioner’s compensation lay with the Board and not with the City. Given this, the City could not provide a remedy and only the Board could alter the Petitioner’s pay scale because it was primarily responsible for compensation practices in relation to their employment. The City might ultimately “pay the bill” but it was the Board who could provide the remedy. The Tribunal did not confine its consideration to the fact that the Board was responsible for collective bargaining and job classification. The Tribunal also took into account the important fact that the governing legislation provided unambiguously that the Petitioners were employees of the Board.

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