No. 24
August 20, 1998
SETTING THE
RECORD STRAIGHT ON A GOVERNMENT APPEAL
The following letter has been submitted to
a number of newspapers as an op-ed piece. It was prepared in
consultation with our legal counsel and demonstrates clearly that
the government has no grounds for an appeal.
Pay equity decision:
Feds have no
legal ground for appeal
Over the next few days, the federal cabinet
will engage in an extensive discussion as to whether to appeal
the July 29, 1998 Human Rights Tribunal's equal pay decision that
should resolve the PSAC's long standing dispute with the Treasury
Board.
While media reports indicate the cabinet is
angst ridden over the decision and the Minister of Finance has
weighed in favour of an appeal, financial considerations are not
grounds for an appeal. In fact, there are only two legal
grounds for an appeal, either the Tribunal erred in law or denied
the parties natural justice. While we are not lawyers, we can say
with certainty that it did neither.
In fact, there are a whole host of reasons
why, from a legal standpoint, a government appeal of the Tribunal
decision would be unwise.
Consider, for example, why the government's
position was so resoundingly repudiated by the Tribunal. The
central issue in dispute between the Alliance and the Canadian
Human Rights Commission (CHRC) was the appropriate wage
adjustment methodology that should be used to determine the
extent of the wage gap. Treasury Board put forward no fewer than four
separate methodologies between the commencement of a joint equal
pay study in 1986 and final argument before the Human Rights
Tribunal in 1997. In contrast, both the Alliance and the CHRC
maintained consistent positions throughout the proceedings.
Surely, the Federal Court will be unimpressed by the
government's' shifting position on this fundamental issue.
Consider as well, that Treasury Board
called no evidence-expert or otherwise-in support of the various
wage adjustment methodologies which it, at various times,
urged the Tribunal to accept. In fact, the Treasury Board counsel
acknowledged, before the Tribunal that the government's
methodology was statistically unreliable. Again, the Federal
Court would surely be unimpressed.
When Parliament created the Canadian Human Rights Tribunal under the Canadian Human Rights Act in 1977, it did so in order that important human rights issues could be considered and disposed of by experts in the area. There can be no question, that the Tribunal did its job in this case. Substantial pay equity and statistical expert testimony was advanced during no fewer than 262 days of hearing. Given that appeal judges would not have the benefit of hearing the complex testimony and asking questions to clarify it, there is no reasonable basis to believe that the Tribunal decision will be overturned.
People in Cabinet and elsewhere who support
an appeal should understand that the Federal Court cannot
consider the issues afresh, and has no power to substitute its
own opinion for that of the Tribunal. Moreover, the Court will
not, except in extreme circumstances that are clearly not present
in this case, question the Tribunal's finding of fact, including
acceptance of expert and other testimony. The Court's reluctance
to do so will be even greater in this case given the length of
the hearing, the complicated nature of the evidence, the critical
findings of fact, and above all, the fact that the government
chose to call no evidence in support of its proposed wage
adjustment methodology.
Without legitimate legal grounds for
appeal, the government tries to build support for an appeal based
on cost. Clearly, the magnitude of the cost is not a basis for
pursuing any appeal to the Federal Court, and even if it was, the
government would be on shaky grounds because it addressed and
dismissed the issue during the Tribunal hearing. At page 154 of
its decision, the Tribunal cited the following testimony from the
Treasury Board counsel "the reason that the employer
did not bring that kind of evidence is that it is our submission
that cost is not relevant to deciding the principles in this
case. The interpretation must be decided based on principle
alone, not on how much it would cost".
This evidence, coupled with statements from
successive Prime Ministers and Treasury Board Presidents that the
government has put the money aside to pay for pay equity should
close the door on the financial burden argument.
In short, if the government appeals the
Tribunal decision it will be nothing more than a cynical move,
politically motivated and designed to further delay the
inevitable. We would hope that the Justices who hear the appeal
and, more importantly, the Canadian public will see the appeal
for what it is.
Daryl T. Bean
National President
Public Service Alliance of Canada
Nycole Turmel
National Executive Vice-President
Public Service Alliance of Canada