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Public Service Alliance of Canada v. Canada Post Corporation and Canadian Human Rights Commission

On 17/11/2011 in

Year: 2011 (Date of Decision: 17 November, 2011)

Forum, Country: Supreme Court; Canada

Standards, Rights: Non-discrimination and equal protection of the law; Reasonableness; Right to decent work; Women

Summary Background: The Canadian Supreme Court reviewed a decision of the Canadian Human Rights Tribunal (CHRT) regarding a claim by the Public Service Alliance of Canada (PSA) that employees in the male-dominated Postal Operations Group were paid more than employees in the female-dominated Clerical and Regulatory Group for work of equal value, contrary to section 11

(1) Where a complaint alleging a difference in wages is filed by or on behalf of an individual who is a member of an identifiable occupational group, the composition of the group according to sex is a factor in determining whether the practice complained of is discriminatory on the ground of sex. (2) In the case of a complaint by an individual, where at least two other employees of the establishment perform work of equal value, the weighted average wage paid to those employees shall be used to calculate the adjustment to the complainant’s wages.
of the Canadian Human Rights Act (“equal wages” provision.) Using job evaluations to determine the comparability of the work of the two groups of employees, the CHRT had determined that there was sufficient evidence of wage discrimination between 1982 and 2002. Canada Post commenced judicial review proceedings in the Federal Court, where the CHRT’s decision was overturned.

On appeal to the Federal Court of Appeal, the majority agreed with Canada Post that the CHRT decision was unreasonable, as the use of job evaluations did not meet the requisite standard of proof to support a finding that wage discrimination had taken place. The PSA appealed to the Supreme Court of Canada.

Holding: The Supreme Court endorsed the reasons of the dissenting Evans J.A from the Federal Court in support of the initial decision by the CHRT. This was based on the arguments that the CHRT was reasonable in using the Postal Operators group as the male-dominated comparator, even though this group included a large number of highly paid women [para. 5]. Justice Evans reaffirmed that this did not preclude the existence of systemic gender discrimination elsewhere in the corporation [para. 69]. Secondly, Evans J.A. supported the CHRT’s reliance on the job evaluations and its application of the “balance of probabilities” standard of proof in finding that a wage gap existed between the two groups [para. 68]. He reiterated the Tribunal’s discretion in choosing a methodology to determine the existence and extent of a wage gap, and that it did not act “unreasonably” in adopting one proposed by the CHRC. Finally, Evans J.A and the Supreme Court emphasized the high degree of discretion awarded to specialized tribunals in their determination of appropriate remedies. The Tribunal at first instance did thus not err in awarding compensation to “make the victims whole,” while reducing the cost of the damages where the magnitude of the damage was uncertain.

The decision of the CHRT was subsequently restored, requiring Canada Post to compensate 50 per cent of the wage gap between the two groups over the twenty-year period.

Link to Full Case: Public Service Alliance of Canada v. Canada Post Corp., 2011 SCC 57, [2011] 3 S.C.R. 572, available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7975/index.do

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Mendoza Beatriz Silva et al v. State of Argentina et al, File M. 1569. XL

On 08/07/2008 in

Year: 2008 (Date of Decision: 8 July, 2008)

Forum, Country: Supreme Court; Argentina

Standards, Rights: Right to life; Rights to water and sanitation; Right to health

Summary Background: This case was filed by residents of the Matanza/Riachuelo basin against the national Government of Argentina, the Province of Buenos Aires, the City of Buenos Aires and several private companies. The suit sought compensation and a remedy for the environmental damage stemming from pollution of the basin. The petitioners further demanded the halting of contaminating activities.

Holding: The Court decided in favour of the petitioners and ordered the Government respondents to take affirmative measures to improve the residents’ quality of life, remedy the environmental damage and prevent future damage.

In its decision, while the Court did not explicitly frame the analysis within human rights law, it focused on issues that have dramatic impact on and relevance for human rights, including the rights to life, health, water, sanitation and a healthy environment.

The Court established an action plan mandating the Government agency responsible for the Matanza/Riachuelo basin to undertake the following: facilitating better information flow to the public [para. 17. II]; containing and cleaning up industrial pollution [para. 17. III]; expanding water supply as well as sewer and drainage facilities [para. 17, VI-VIII]; creating an emergency health plan [para. 17, IX]; and adopting an international monitoring framework as a yardstick to assess compliance with the plan’s goals. The Court directed the goal should primarily be to improve the quality of life for residents [para. 17, I].

Additional Comments: Although the case did not adopt an explicit human rights approach, it clearly highlighted the State’s duty to respect, protect and fulfil rights. The remedies ordered are particularly comprehensive and a mechanism for monitoring compliance and enforcement is included.

Link to Full Case: Accessible at: http://www.escr-net.org/docs/i/1469153. English translation accessible at: http://www.escr-net.org/docs/i/1469150

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