Media Room

Continued

At page 102 of the Task Force report, the Task Force noting the submissions received from individual employees states the following with respect to the impact of delays:

"For these employees and others like them, the old adage 'justice delayed is justice denied' had a strong resonance given the impossibility of making people whole for all of the consequences of delay in this kind of situation. For a number of employees, the adage was literally true as they did not live to see the success of the claims filed in their names.  In the stories we have cited, the delays in the pay equity proceedings were not the only cause of distress or hardship suffered, but the employees did identify these delays as one of the factors aggravating their situation."

The Task Force also recognizes the impact of the current system on employers.  At page 103 of the final report of the Task Force, the report says the following:

"Employers also face the possibility that the complaint will be upheld and they will have to bear the considerable cost of wage adjustments at the end of the process."

The problems that lengthy hearings can have on the Tribunal have also been referenced by the Task Force report at page 102 which says the following:

"From the perspective of the Canadian Human Rights Tribunal, proceedings of this magnitude become exceedingly difficult to manage.  Scheduling hearing dates over such long periods of time and, in particular, accommodating the schedules of lawyers, part-time Tribunal members and expert witnesses, was one problem.  Handling the volume of documents and other evidence associated with the proceedings was another.  The number of days consumed by the hearings themselves -- in the case involving the Public Service Alliance of Canada and Treasury Board, the hearing went on for over 374 days -- must inevitably have made it difficult for the hearing panel to maintain a comprehensive understanding of the case as a whole and to assemble all of the information into a coherent decision when the hearing was over."

Finally, at page 108 of the Task Force report, the Task Force concludes the following:

"On the whole, however, we have concluded that the regime in place under Section 11 has provided for an inadequate foundation for significant and systematic progress towards the goal of pay equity across the federal jurisdiction as a whole.  Those who took part in our consultation process, workers, trade unions, employer representatives, equality-seeking groups, government officials and Tribunal members do not always agree on the details of acceptable changes.  Yet, there was virtually universal agreement among them that the current system does not constitute an effective means of advancing towards equitable wages.  They have experienced frustration, uncertainty, lengthy delays and acrimonious atmosphere and staggering costs associated not only with the outcome, but with the very process itself.  Most importantly perhaps, the process has proved inaccessible to a large number of workers, many of them the most vulnerable."

In the Commission's view, all of these problems are abundantly evident in this case.  As the Tribunal and the parties know, the Commission's role in  hearings before this Tribunal are circumscribed by Section 51 of the Canadian Human Rights Act which states:

"In appearing at a hearing, presenting evidence and making representations, the Commission shall adopt such as position as, in its opinion, is in the public interest having regard to the nature of the complaint."

Having regard to the length of these proceedings, the costs to the parties, the cost to the public in terms of the dollar amounts and the loss of integrity of its human rights redress system and the cost to the individual employees who seek finality to their complaint, it is the Commission's opinion that the public interest in this case lies in bringing the litigation to a resolution.

The status quo option is progressing so slowly toward a final determination that it can no longer be viewed as an efficient means of resolving this dispute.  Furthermore, the public interest and the goals of pay equity are ill served by litigation that takes more than a decade to complete.  There must be another way of resolving this matter.

The Commission is therefore proposing that the Tribunal adjourn these proceedings to allow the parties to take part in a meaningful dialogue with a view to resolving the complaints.

An immediate adjournment of this hearing is necessary because to do otherwise would just be encouraging the status quo and for the reasons indicated earlier, in the Commission's opinion, the status quo has proven to be a very poor option for resolving this dispute.  The parties must be afforded a reasonable amount of time during which they can channel all of their energies toward a non-litigious resolution.  It does not make sense to pursue both litigious and non-litigious avenues at the same time.

The Commission is under no illusions as to the complex nature of the issues that face the parties.  This is why the Commission, while remaining open to other reasonable ideas, wishes to make a proposal that deals with process issues only.  As everyone knows, even the longest journeys start with a single step.  To make this first step as painless as possible and as a goodwill gesture, the Commission is offering to host an initial two-day mediation session with the goal of establishing a process under which negotiations of the substantive issues can take place.
 The Commission is proposing that the mediation on process take place on April 8th and 9th, 2005.  Mr. Justice Gérard La Forest, formerly of the Supreme Court of Canada and currently a member of the Commission's advisory council of eminent jurists has agreed to act as mediator to establish a procedural framework within which negotiations on the substantive issues can take place.

The Commission will defray the costs of this mediation on process issues which will be held at a neutral site in Ottawa.  The parties will be free to discuss the parameters within which negotiations on the substantive issues can be held.  For example, matters that can be addressed at the process mediation can include issues such as who will be at the table, will there be a mediator and if so, who, where will the discussions take place and what will be the timetable.

Whatever process is established for dealing with the substantive issues, the parties will need a reasonable amount of time to negotiate, discuss, caucus and hopefully approve any agreement that they arrive at.  This does not mean that the Commission is suggesting that the hearing should be adjourned indefinitely.  On the contrary, in the Commission's submission, a return date of September 12, 2005 would be more than reasonable.  The parties would be expected to keep the hearing dates that have already been scheduled for the fall of 2005 available.

This type of mediation will allow the parties to have input into the process that they can follow to arrive at an expedited, fair and final determination of these complaints.  The parties themselves will be able to establish the parameters within which they wish to deal with the substantive issues of the dispute.

This approach is consistent with the approach the Commission is taking in all complaints:  putting an emphasis on mediated dispute resolution.  It behooves all parties acting in the public interest and in the interest of their clients to make their best efforts to resolve these long-standing complaints.

I wish to add that this proposal is not carved in stone.  While the Commission believes that it is in the public interest to make a serious attempt to arrive at a negotiated solution of these complaints, it remains flexible as to the details about when, where and by whom the mediation should be conducted.  The Commission is just making a proposal.  If the parties have any better ideas, the Commission is more than willing to consider them provided they relate to an alternative way to resolve these complaints.

Earlier this week, I advised counsel for both the CEP and for Bell Canada of the substance of this proposal.  I also had discussions with Mme Gagnon on behalf of Femmes-Action.

I wish to stress that this proposal is entirely the initiative of the Commission and has not been developed in consultation with any of the parties.  The proposal has been made in the hope that the other parties will agree to it, in which case they will join with the Commission in asking the Tribunal to adjourn the hearing.  Naturally, the decision to grant the adjournment is the Tribunal's to make after hearing from all of the parties.

The Commission has made this request because it is of the opinion that it is in the public interest to do so.

Once again, I would like to thank the Tribunal for affording me the opportunity to make this statement and I look forward to hearing a response from my friends if not today, then in the very near future.

THE CHAIRPERSON:  Thank you, Mr. O'Rourke.

I don't know where you are, Mr. Rosen or Mr. Engelmann.

I take it, Mr. O'Rourke, you have spoken to all the parties and Madame Gagnon is aware of the proposal you were going to make today and the details you were going to make.

MR. O'ROURKE:  I am sorry, I am having trouble hearing you.

THE CHAIRPERSON:  Are all counsel and Femmes-Action aware of what you were going to say today and the proposal you were going to make today?

MR. O'ROURKE:  I made them aware of the broad lines of my proposal, the fact that the Commission was asking that there be an immediate adjournment, the fact that the Commission was proposing Justice La Forest for a two-day mediation on process issues only.  They were made aware of that information on Monday of this week.

THE CHAIRPERSON:  Are you prepared to speak to this now, Mr. Rosen, Mr. Engelmann and Madame Gagnon or do you want some time to think about it?

MR. ROSEN:  I don't know, Mr. Sinclair and Member Deschamps, the protocol of who would speak first or second or third.

THE CHAIRPERSON:  I will establish the protocol.  I am going to have you speak first, then Mr. Engelmann, and then Madame Gagnon.

MR. ROSEN:  My remarks will be brief.

Mr. O'Rourke, as he indicated to the Tribunal, called me this week to give me the broad brushstrokes of the submissions or statement that he was going to make to the Tribunal this morning.  I have now listened to his fairly detailed and comprehensive statement and I have listened very carefully to the statement of the Commission.

This is a significant development and we recognize that the Commission has not made its statement without serious consideration.  Our client is already on the record as being willing and open to try to settle this matter.

As the Tribunal is aware, since the filing of the complaints, our client has consistently been willing to explore other avenues for resolution of this matter.  I therefore expect that my client will agree in principle with the proposal of the Human Rights Commission having heard it now in detail for the first time, that there is an opportunity at this juncture to enter into a mediation process.

I would further add that as the Commission has proposed, we also agree -- and I have made this clear to the Tribunal personally -- that for there to be reasonable prospects for such a mediation to succeed, the litigation of this case should not continue while mediation would proceed.  We consider that in order for the parties or to allow the parties to focus their energies on exploring mediation arrangements and good faith negotiations and to permit the existence or creation of conditions which would be conducive to constructive discussions -- the parties cannot and should not be expected to litigate at the same time that they attempt to mediate.

Accordingly, I would expect and I believe my client shall be prepared to accept the Commission's condition that the hearings be suspended until September 12, 2005, but we must state and we do state for the record that if ever this mediation does not succeed in resolving the matter which is now before this Tribunal, I will say to the Tribunal that my client will be ready, willing and able to suggest and discuss ways to make up the 22 and one-half hearing days that would be lost as a result of the adjournment.  Thank you.

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