Media Room

Statement by the CHRC before the Canadian Human Rights Tribunal
in relation to the pay equity complaint against Bell Canada.

Ottawa, Ontario
Upon resuming on Thursday, February 24, 2005 at 9:35 a.m.

THE CHAIRPERSON:  Mr. O'Rourke, I understand you want to talk to us.

MR. O'ROURKE:  Yes.  Good morning, and thank you for allowing me to make this statement.

First of all, I would like to say a few words about the work of the Canadian Human Rights Commission in matters that are unrelated to this case.

Since 2003, the Commission has been transforming the way it works to better protect and promote equality in Canada.  As always, the Commission seeks to advance human rights in Canada and it offers Canadians under federal jurisdiction an avenue for resolving human rights complaints.

In essence, the Commission has been moving to focus more of its efforts and resources on human rights problems before they grow into damaging and lengthy disputes that are costly both emotionally and financially.  That means trying to resolve human rights issues early using such instruments as policies, information, training and mediation.

But the Commission is not just focusing on the resolution of complaints in their infancy.  In the Commission's view, it is in the public interest to be willing to resolve complaints at every stage.  This approach has seen its practical application through, amongst other things, the Commission's full participation in mediations conducted by the Tribunal.

In May 2004, the Pay Equity Task Force -- a copy of which I have with me today -- established by the federal government issued its final report.  This report not only summarized the drawbacks that are endemic in the present system of investigating and prosecuting complaints of wage discrimination under section 11, but also made numerous recommendations for change which are currently being reviewed by the Minister of Justice.

Turning to the present case:  We have now reached a point in the evidence where one can say that the Tribunal has heard the expected statistical evidence in support of the complaints.  All of these different but important facts taken collectively and combined with the passage of time have caused the Commission to pause and reflect on the public interest in this hearing.

The Commission's involvement with these complaints goes back to before the dates of the actual complaints before you.

In 1988 the Commission first began receiving complaints under section 11 from individuals employed at Bell Canada.  In time, the Commission would receive dozens of these individual complaints against Bell Canada.  Later the Commission began receiving group complaints and in 1994, as you know, the complaints that are now before you were filed with the Commission.

In 1991 Bell Canada, in a joint effort with its unions, undertook a study of the wages in its female- and male-dominated jobs.  The Commission participated in this joint study to the extent of providing consultations, reviewing documentation and attending meetings.
 In 1994 following the preparation of the Draft Investigative Report, the Commission retained an expert in job evaluation and pay equity to act as a mediator in this dispute.  As you are aware -- and it's abundantly obvious -- this Commission-sponsored mediation of the complaints was not successful.

In June 1996 the Commission referred these complaints for an inquiry.  The first Tribunal hearings commenced in 1997, but did not get past the preliminary hearing stage.  Bell Canada challenged the impartiality and independence of the Tribunal.  This led to a judicial review hearing at the Federal Court where Bell was successful.

As a result of the Federal Court's decision in this case, the Canadian Human Rights Act was amended in June 1998.  No evidence was ever heard on the merits of the complaints during this original Tribunal.

The second and current Tribunal was constituted in January 1999.  Preliminary motions continued until April 2000 when the substantive evidence on the merits of the case commenced.

In October 2002 the CTEA representing some 18,000 clerical workers in predominantly female positions entered into a settlement with Bell Canada.  As a result of this settlement, the CTEA withdrew its complaints from the Tribunal.

The remaining complaints before the Tribunal are the CEP complaint brought on behalf of the Operator Services & Dining Service employees and the Femmes-Action complaint also brought on behalf of Operator Services & Dining Service.

The CEP complaint covers approximately 4,500 operators, operator clerks and assistants, who were part of the Operator Services & Dining Service Bargaining Unit in 1994.  Since the filing of the complaint, this number has been reduced to less than 300 employees today.

The CEP complaint also covers approximately 48 employees who were part of the Dining Service in 1994.  There are no longer any Dining Service positions at Bell Canada.

Since the date of the original referral of these complaints in 1996, this case has spawned numerous applications to the Federal Court and beyond.  In all, there have been 11 judicial review applications leading to five decisions from the Federal Court.  In addition, there have been seven appeals in the Federal Court of Appeal and two applications for leave to appeal in the Supreme Court of Canada resulting in one hearing before the highest court.

The Commission has been an active and aggressive party throughout all of this litigation and in the proceedings before this Tribunal.

At the present stage of the hearing, the Tribunal has heard 246 days of evidence.  From the beginning the Commission has taken a lead role in the hearing and has now completed all of its evidence consisting of three expert witnesses and two factual lay witnesses.

The Commission's first expert witness, Dr. Pat Armstrong, set out the contextual background to wage discrimination in Canada.  This evidence was followed by the factual evidence of Linda Wu, a former Bell employee and CTEA member, who was one of the three co-chairs in the joint study.

The Commission then called Alan Sunter, an expert statistician, to provide his opinion on the most appropriate wage adjustment methodology.

Next the Commission called Dr. Ronnie Steinberg, a sociologist with expertise in job evaluation and pay equity from Vanderbilt University, to give her opinion on the reliability of the joint study.

Finally, the Commission called Doug Dutton, an employee at Bell and a member of the CEP, to advise of his participation in the joint study as a member of the job evaluation committee.

The CEP is currently presenting its evidence and, depending on the length of cross-examinations, should be completed by approximately May or June 2005.  However, the way this hearing has proceeded, this could easily become September or October.

The CEP's evidence has thus far consisted of the evidence of Trish Blackstaffe, who was the CEP co-chair in the joint study, and Dr. Richard Shillington, an expert statistician, who has quantified the wage gap based on Alan Sunter's methodology.  Dr. Lawrence Gould testified on behalf of the CEP with respect to the appropriate interest rate and frequency of compounding to be applied to the lost wages.

The CEP is now at the start of its next witness who will address the issue of technical change in the jobs at Bell.

We have been advised that this witness will be followed by a number of operators who will testify regarding the pain and suffering they incurred as a result of being paid discriminatory wages.

In the Commission's view, one can anticipate that Bell Canada will commence calling its evidence in September 2005 at the earliest and possibly in January or February 2006.  Given the witness list we have seen, Bell Canada will likely not finish until the spring of 2007 at the earliest.

A decision from the Tribunal could then at best be reasonably expected in approximately the fall of 2007.  That is the best case.  In a worst case scenario, the case could continue until 2010.

Regardless of the outcome of the hearing, there is a reasonably likelihood of a judicial review of the Tribunal's decision.  The judicial review would certainly take 12 to 18 months before a decision is rendered.

This means that should the case end with the judicial review at the Federal Court -- and if history means anything, it probably will not -- a final outcome could take until mid-2008 in the best case scenario, but it is likely that it could go longer.

This hearing and the litigation it has generated has been enormously expensive for all parties and for the public as well.  While the dollar value attached to the legal costs is significant, it pales in comparison to the costs incurred by the human rights system as a whole resulting from protracted litigation.

The problems with the current system of investigating and prosecuting complaints of wage discrimination have been highlighted by the final report of the Task Force on Pay Equity, as I said earlier, a copy of which I have brought with me today.  It can be found on-line by visiting the pay equity page at the Commission's website.

In referring to pay equity complaints in general, the Task Force states the following at page 100 of its report:

"The length of time taken to arrive at a final determination of these complaints is perhaps the single most striking feature of the operation of the current system, leading Mr. Justice Pelletier of the Federal Court to observe on one occasion:  'By all appearances, pay equity claims are like education savings plans.  They are investments made by one generation for the benefit of the next.'"

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