MULDOON, J.: In every case where parties ask a court to resolve their dispute one side is satisfied and the other ends up being dissatisfied, but that's the nature of disputes being resolved, not by the parties, but, by a third party.
This is an application for judicial review of two closely related decisions made, one, May 16, which is in file T-1424-96, and the other June 12, 1996, in file T-1672-96, decisions by the Canadian Human Rights Tribunal regarding a complaint made against the applicant, Canada Post Corporation. The complaint alleges that Canada Post contravened section 11 of the Canadian Human Rights Act by paying certain clerical employees, predominantly women, less than certain postal operations group employees, predominantly men, for work of equal value.
The two applications before the court today were joined by the order of Mr. Justice Pinard on July 22, 1996. The applicant seeks to have the decisions quashed, and asks for an order of mandamus, by which the orders of the tribunal to allow the applicant to lead the evidence excluded by the decisions might be quashed and the tribunal compelled to accept the evidence sought to be led by the applicant.
The impugned decisions concerned the admissibility into evidence of the testimony of expert witnesses, which refers to a 1987 job evaluation report made by the Canadian Human Rights Commission. In order to adjudicate the complaint, three job evaluation studies were admitted by consent of all into evidence before the tribunal; the 1987 report, a report made by the Commission in 1991, and a report or study made by the Public Service Alliance of Canada in 1993. During the hearing before the tribunal the applicant, Canada Post, wanted its experts to be able to refer to the results of the 1987 study. Counsel for the PSAC and the Commission objected to any reference by the applicant's expert witnesses to the 1987 study. That is found in the transcript, volume 165, pages 21179-21183 and 21194. The objection made by counsel for the PSAC and the Commission was on the grounds of relevance.
In the court's opinion, it is a bizarre thing to say that a document may be admitted into evidence but witnesses may not testify about it or give evidence about it. These would be expert witnesses it is understood. All parties agreed that a voir dire should be held to determine the admissibility of the expert witnesses' testimony regarding the 1987 job rating results.
The parties agreed that the voir dire would be held in two phases. The first dealt with the issue: "Are the 1987 rating results relevant to the assessment of the reliability of the 1991 and 1993 ratings results?" This was answered by the tribunal in the negative on May 16, 1996.
The issue in the second phase of the voir dire was this: "Are the 1987 ratings relevant to determining the existence and magnitude of any wage gap?" The tribunal answered this question in the negative as well. These are the interlocutory decisions now before the court.
The court had referred to counsel, some days before this hearing began, certain jurisprudence; Szczecka v. M.E.I., (1993) 170 N.R. 58, and Schnurer v. M.N.R., A-315-96, February 3, 1997. Another which might well be cited is Brennan v. The Queen, [1984] 2 F.C. 799. All are to the effect that the court ought not to be troubling itself, or wasting the time of the tribunal, at least the Federal Court of Appeal in section 28 proceedings, by adjudicating disputes over interlocutory rulings.
Despite such jurisprudence counsel for all parties here agreed that this matter ought to be heard and determined in order to allow the proceedings to unfold before the tribunal. It has been so, however, that the applicant here has not asked for any stay of the tribunal's proceedings pending the resolution of this dispute.
The applicant, Canada Post, called three expert witnesses during the first phase of the voir dire to attest to the relevance of the 1987 study in assessing the reliability of the 1991 and 1993 rating results. First to testify was Ms. Nadine Winter. Ms. Winter testified that in order for the results of the job evaluation to be acceptable they must be reliable. Results, she said, are reliable when very similar results for a job are obtained using the same evaluations. Ms. Winter testified that all three sets of job evaluations used the "Hay system" of job evaluation and that the 1987 version used a very slightly modified version known as "System 1." After examining all three studies, Ms. Winter came to the conclusion that the 1987 report was very useful in assessing the reliability of the 1991 and 1993 reports because all three studies revealed inconsistent results. Using the 1987 results was a good opportunity to check reliability.
Dr. Bellhouse was the second expert called by the applicant. He examined the reports from a statistical viewpoint and stated that he would expect repeated evaluations using the same method to give the same results. If they did not, the results could not be reliable. In essence, his testimony went like this: If there are three job evaluations which do not agree, all three evaluations may be useless. Two sources of statistically demonstrable bias were identified by Dr. Bellhouse which could only be separated statistically if the 1987 job results were taken into consideration. That is at the applicant's record, volume 2, pages 698 to 701, and 711 to 712. He concluded that it would be very difficult not to use the 1987 job evaluations in any statistical examination of the studies than in using the 1991 and 1993 results only, much more difficult. And that is in the applicant's record, volume 2, page 716.
Mr. Norman Willis was the last expert called by Canada Post in this phase of the voir dire. He testified that the 1987 results are relevant, mainly for the same reason noted above by the other two witnesses and for the obvious reason, the more sets of available data, the easier it is to assess the other studies. Mr. Willis testified that the 1987 study is not invalidated in its assessment of the CR, or clerical, jobs just because the PO, or postal operation, jobs are not also evaluated.
The PSAC and the Commission called no evidence on this issue. On May 16 the tribunal ruled that the 1987 job evaluation results were inadmissible because they were irrelevant to assessing the reliability of the 1991 and 1993 job evaluations. That is found in the applicant's record, volume 1, pages 10 to 36.
The second phase of the voir dire commenced to determine whether the 1987 ratings were relevant for determining the existence and magnitude of any wage gap. Canada Post called one witness, Dr. John Mattila. He testified that there exist statistical methods which can correct errors in job evaluation ratings, but in order to apply them independent replications of the evaluation ratings are required. Dr. Mattila testified that the 1991 and 1993 ratings were not independent replications because the 1993 evaluators were aware of the 1991 rankings and had examined the 1991 job evaluation rationales. According to Dr. Mattila, independent replications would show whether there were degrees of correlation with the other factors in the studies. Dr. Mattila's opinion was that the lack of independence of the later reports increased the significance of the 1987 evaluation because there was an independent replication. Ultimately, Dr. Mattila testified that the 1987 ratings contained much useful data. That is found in the applicant's record at volume 4, pages 1285 and, again, pages 1269-1270.
On June 12 the tribunal ruled that the 1987 job evaluation results were irrelevant to the assessment of the measurement error in the 1991 and 1993 evaluation studies. Much jurisprudence was cited in this case as to whether the court ought indeed to deal with or intrude upon the interlocutory ruling of the tribunal in regard to the admissibility of the evidence. Some reference ought to be made here to various rulings of the court which are taken simply from the books of authorities. The first one which may be mentioned is the Attorney General of Canada v. Mossop, [1993] 1 S.C.R. 555, and a passage by Mr. Justice La Forest at page 585 is worth quoting. Mr. Justice La Forest says:
| "That power resides only with the tribunal in its adjudicative role under Part III of the Act. And the tribunal is not, simply by these other functions of the Commission, entitled to be free of normal review in its adjudicative function. The tribunals themselves are ad hoc bodies established to settle a particular dispute. In this respect their positions are similar to that of a labour arbitrator. But a human rights tribunal does not appear to me to call for the same level of deference as a labour arbitrator." |
He goes on and ultimately says:
| "The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability." |
Also cited was Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571. The passage of importance there was one written by Mr. Justice Iacobucci and what he said is that there is a spectrum and that there is at one end deference and at the other end correctness. These are the standards which the courts apply to various administrative tribunals. And the passage the court wishes to quote here is this:
| "At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights. See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321." |
And so on.
Of interest of course is the case of Morris v. The Queen, [1983] 2 S.C.R. 190, and another case of criminal law, R. v. Corbett, [1988] 1 S.C.R. 670. There is a passage by the chief justice of the day, Chief Justice Dickson, in which he says:
| "I agree with my colleague, La Forest, J., that basic principles of law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto. Thereafter the question is one of weight. The evidence may carry much weight, little weight or no weight at all. If error is to be made it should be on the side of inclusion rather than exclusion and our efforts in my opinion, consistent with the ever-increasing openness of our society, should be toward admissibility unless a very clear ground of policy or law indicates exclusion." |
Now that is a case, as mentioned, in the realm of criminal law where the standards of admissibility are notably higher and more stringent than in administrative or other civil law cases.
In the case of R. v. Zeolkoski, [1989] 1 S.C.R. 1379, Mr. Justice Sopinka, who also happens to be one of the learned authors of a textbook on evidence, says this, at page 1386:
| "The meaning of 'all relevant evidence' was the principal basis upon which the majority of the Court of Appeal rested its decision. In my opinion, this expression means all facts which are logically probative of the issue. The general rule of evidence is that all relevant evidence is admissible. Frailties in the evidence are a matter of weight." |
And so, again, in Roberval Express v. Transport Drivers Union, [1982] 2 S.C.R. 888, the late Mr. Justice Chouinard made this statement at page 904:
| "In my view, there is more here than a question concerning the weighing of evidence. If these facts are proven, and at the stage of issuing the writ of evocation they must be taken as proven, I would have no hesitation in finding that they support the conclusions sought. Appellant alleged a refusal by the arbitrator to hear admissible and relevant evidence. A refusal to hear admissible and relevant evidence is so clear a case of excess or refusal to exercise jurisdiction that it needs no further comment." |
Finally the court wishes to cite the case of Université du Québec v. Laroque, [1993] 1 S.C.R. 471, where the present chief justice of Canada, Chief Justice Lamer, speaking at page 490, said:
| "It is true that the error of an administrative tribunal in determining the relevance of evidence is an error of law, and that in general the decisions of administrative tribunals which enjoy the protection of a complete privative clause are beyond judicial review for mere errors of law." |
The court pauses here to note that the particular administrative tribunal, a human rights tribunal, has no privative clause.
Chief Justice Lamer went on to say:
| "That is not true, however, in cases where, as occurred here in the submission of the respondent, the arbitrator's decision on the relevance of evidence had the effect of breaching the rules of natural justice. A breach of the rules of natural justice is regarded in itself as an excess of jurisdiction and consequently there is no doubt that such a breach opens the way for judicial review; but that brings us back to the point at issue in this case: Was there a breach of natural justice as a result of the mis en cause arbitrator's refusal to admit the evidence submitted by the respondent?" |
Now, the applicant here, Canada Post, says that if it be forbidden from putting before the tribunal its full defence that would be a breach of natural justice, that is the argument there. The respondents take the position that the 1987 report is before the court and what can the applicant do with it. In that case as well, there is a passage written by Madam Justice L'Heureux-Dubé at page 495 where she wrote:
| "Refusing to hear relevant and admissible evidence is a breach of the rules of natural justice. It is one thing to adopt special rules of procedure for a hearing, and another not to comply with a fundamental rule, that of doing justice to the parties by hearing relevant and therefore admissible evidence. That is the case here." |
The court would refer to two other sources, textbooks, and the one most favoured usually by this court is Sopinka, Lederman and Bryant, "The Law of Evidence in Canada," 1992, pages 22 and pages 26 to 27, as well as "Wigmore on Evidence," volumes 1 and 1A, revised by P. Tillers, 1983, pages 714-715. Those are generally the sources of jurisprudence which the court notes in this case.
It appears to this court that the tribunal did make an error in law by excluding testimony from Canada Post's witnesses about a document already admitted into evidence. It appears that the tribunal, and perhaps counsel for PSAC and the Commission, did not sufficiently distinguish between the notions of admissibility of evidence and weight of evidence.
Counsel for the PSAC has given justifiable voice of complaint to the time which this matter has taken. The complaint was in 1983 and now it is 14 years later and the tribunal is still in the midst of its deliberations. Human rights tribunals, as all know, are established by law in order to give a relatively summary and swift hearing of a human rights complaint, so that there is something amiss in this case as anyone can see. But the delay is not an issue before the court. One might observe that had the respective counsel opposing Canada Post simply accepted the testimony, the document and that testimony would be a matter of comment as to weight and the tribunal might have held no weight at all and one would have saved this time too. But the court does not begrudge the time because obviously the court is established to resolve disputes between parties in matters of the laws of Canada.
The finding of the court then on this particular dispute is that the tribunal exceeded or failed to exercise its jurisdiction, that it also was creating a breach of natural justice in declining to allow the Canada Post's witnesses to comment on the 1987 study which was already before the tribunal by consent of the parties.
The applications by Canada Post will be allowed pursuant to rule 337(2)(b). Canada Post's counsel and solicitors will draw up forms of orders based on their application, submit them to counsel on the other side for verification and appropriate form, and then submit those to the court. They may recite as many of the factors raised in this matter as counsel deems advisable and then have the appropriate executive provisions disposing of the applications.
This is a matter of judicial review and ordinarily costs are not awarded except in special circumstances. The court sees no special circumstance here except that it is a tempest over the admissibility of documents, which the court would ordinarily not entertain, but that is not a special circumstance from which costs can be awarded so there will be no costs.
| THIS IS TO CERTIFY THAT I have, to the |
| best of my skill and ability, taken |
down in stenotype and transcribed by
| means of computer-aided transcription |
| the foregoing proceedings. |
| Genevieve MacKenzie, CSR |
| Chartered Shorthand Reporter |
Court File No. T-1424-96
T-1672-96
IN THE FEDERAL COURT OF CANADA
(TRIAL DIVISION)
B E T W E E N :
CANADA POST CORPORATION
Applicant
- and -
PUBLIC SERVICE ALLIANCE OF CANADA and
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
**********
R E A S O N S F O R J U D G M E N T
of the Honourable Mr. Justice Muldoon
given orally on the 12th day of May, 1997,
in Courtroom 2, Federal Court,
90 Sparks Street,
in the City of Ottawa,
in the Province of Ontario.
APPEARANCES:
Roy L. Heenan,
Thomas E.F. Brady Counsel for the Applicant
James G. Cameron Counsel for the Respondent,
Public Service Alliance of Canada
Fiona Keith Counsel for the Respondent,
Canadian Human Rights Commission