Supreme Court of Canada

CN v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 SCR 1114

Date: 1987-06-25

Action Travail des Femmes Appellant

v.

Canadian National Railway Company Respondent

and

Canadian Human Rights Commission Mis en cause

and

Attorney General of Canada Intervener

and between

Canadian Human Rights Commission Appellant

v.

Canadian National Railway Company Respondent

and

Action Travail des Femmes, Denis Lemieux, Nicole Duval-Hesler, Joan Wallace and the Attorney General of Canada Mis en cause

INDEXED AS: CANADIAN NATIONAL RAILWAY CO. V. CANADA (CANADIAN HUMAN RIGHTS COMMISSION)

File Nos: 19499, 19500.

1986: November 5, 6; 1987: June 25.

Present: Dickson C.J. and Beetz, Estey, Mclntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.

Chouinard J. took no part in the judgment.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Civil rights — Discrimination — Employment — Systemic discrimination against an identifiable group — Human Rights Tribunal imposing employment equity program on employer — Tribunal's order setting employment goal and fixing hiring quota — Whether the Tribunal had jurisdiction to make such order — Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2, 15(1),41(2)(a).

Statutes — Interpretation — Human rights legislation — Legislation to be given a broad interpretation to fulfil its purposes — Canadian Human Rights Act, S.C. 1976-77, c. 33.

Action Travail des Femmes alleged that CN was guilty of discriminatory hiring and promotion practices contrary to s. 10 of the Canadian Human Rights Act by denying employment opportunities to women in certain unskilled blue-collar positions. A Human Rights Tribunal constituted under s. 39 of the Act studied the complaint, found that the evidence indicated clearly that the recruitment, hiring and promotion policies at CN prevented and discouraged women from working on blue-collar jobs, and concluded that it was essential to impose upon CN a special employment program. In particular, paragraph 2 of the Special Temporary Measures Order required CN to increase to 13 per cent—the national average—the proportion of women working in non-traditional occupations, and until that goal was achieved, to hire at least one woman for every four non-traditional jobs filled in the future. CN's application to the Federal Court of Appeal under s. 28 of the Federal Court Act to review the Tribunal's decision was allowed and paragraph 2 of the Special Temporary Measures Order was set aside. The majority of the Court held that the Tribunal exceeded its jurisdiction under s. 41 (2)(a) of the Canadian Human Rights Act in making that part of the Order because the Tribunal's power under that section is limited to prescribing measures for the purpose of preventing in the future the recurrence of discriminatory practices which had been found to exist and not to remedy the consequences of past discrimination. This appeal is to determine whether the Tribunal has the power under s. 41(2)(a) to impose upon an employer an "employment equity program" to address the problem of "systemic discrimination" in the hiring and promotion of a disadvantaged group, in this case women.

Held: The appeal is allowed and the cross-appeal dismissed.

The Order made by the Tribunal was within its jurisdiction under s. 41(2)(a) of the Act. The purpose of the Act, stated in s. 2, is not to punish wrongdoing but to prevent discrimination against identifiable protected groups and the Act must receive a fair, large and liberal interpretation to advance and fulfil its purpose. Under s. 41(2)(a), the Tribunal may order the "adoption of a special program … referred to in subsection 15(1)", a section designed to meet the problem of systemic discrimination, "to prevent the same or a similar [discriminatory] practice occurring in the future". An employment equity program, such as the one in the present case, is designed to break a continuing cycle of systemic discrimination. The goal is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past. Rather, an employment equity program is an attempt to ensure that future applicants and workers from the affected group will not face the same insidious barriers that blocked their forebears. In any employment equity program, there simply cannot be a radical dissociation of "remedy" and "prevention" for there is no prevention without some form of remedy. Although the dominant purpose of such programs is always to improve the situation of the target group in the future, it is essential, in attempting to combat systemic discrimination, to look to the past patterns of discrimination and to destroy those patterns. In this case, it is an uncontradicted fact that the hiring and promotion policies of CN and the enormous problems faced by the tiny minority of women in the blue-collar work force amounted to a systematic denial of women's equal employment opportunities. The employment equity program ordered by the Tribunal, including paragraph 2 of the Special Temporary Measures, was rationally designed to combat such systemic discrimination by preventing "the same or similar practice occurring in the future" and, therefore, fell within the scope of s.41(2)(a).

Cases Cited

Referred to: Bhinder v. Canadian National Railway Co., 1985 CanLII 19 (SCC), [1985] 2 S.C.R. 561, affg 1983 CanLII 5037 (FCA), [1983] 2 F.C. 531; Insurance Corporation of British Columbia v. Heers-pink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145; Winnipeg School Division No. 1 v. Craton, 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150; Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; Canadian Odeon Theatres Ltd. v. Saskatchewan Human Rights Commission, 1985 CanLII 183 (SK CA), [1985] 3 W.W.R. 717.

Statutes and Regulations Cited

Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2,10, 15(1), 39,41(2)(a), (b),(c),(d).

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,s. 28.

Interpretation Act, R.S.C. 1970, c. 1-23, s. 11. Ontario Human Rights Code, R.S.O. 1980,c.340.

Authors Cited

Abella, Rosalie S. Report of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services Canada, 1984.

Agocs, Carol. "Affirmative Action, Canadian Style" (1986), 12 Canadian Public Policy—Analyse de politiques 148.

Blumrosen, Alfred W. "Quotas, Common Sense and Law in Labour Relations: Three Dimensions of Equal Opportunity". In Some Civil Liberties Issues of the Seventies. Edited by Walter S. Tarnopolsky. Toronto: Osgoode Hall Law School, York University, 1975.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Greschner, Donna and Ken Norman. "Notes of Cases" (1985), 63 Can. Bar Rev. 805.

Tarnopolsky, Walter S. Discrimination and the Law in Canada. Toronto: R. De Boo, 1982.

APPEAL from a judgment of the Federal Court of Appeal, 1985 CanLII 5531 (FCA), [1985] I F.C. 96, 20 D.L.R. (4th) 668, 61 N.R. 354, allowing CN's application under s. 28 of the Federal Court Act and setting aside part of the Human Rights Tribunal's Order. Appeal allowed and cross-appeal dismissed.

Héléne Lebel, Q.C., for Action Travail des Femmes.

Alphonse Giard, Q.C., Rolland Boudreau, Q.C., and Anne Bétournay, for the Canadian National Railway Co.

René Duval and Anne Trotier, for the Canadian Human Rights Commission.

The judgment of the Court was delivered by

Introduction

THE CHIEF JUSTICE—This case raises the important question whether a Human Rights Tribunal appointed under s. 39 of the Canadian Human Rights Act, S.C. 1976-77, c. 33 (the Act), has the power under s. 41(2)(a) to impose upon an employer, in this case Canadian National Railway Co., a program tailored specifically to address the problem of "systemic discrimination" in the hiring and promotion of a disadvantaged group, in this case women. I am content to adopt the vocabulary of the Report of the Commission on Equality in Employment (1984), authored by Judge Rosalie Abella (the Abella Report) and to describe such programs as "employment equity programs".

Action Travail des Femmes, a public interest pressure group originally funded by the federal government but now incorporated and financed independently, alleged that Canadian National was guilty of discriminatory hiring and promotion practices contrary to s. 10 of the Act by denying employment opportunities to women in certain unskilled, blue-collar positions. Section 10 of the Act reads:

10. It is a discriminatory practice for an employer or an employee organization

(a) to establish or pursue a policy or practice, or

(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,

that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

The Facts

The Facts

A Human Rights Tribunal was constituted in July 1981 to study the complaint lodged by Action Travail des Femmes. The complaint reads as follows:

A.T.F. has reasonable grounds to believe that CN in the St. Lawrence Region has established or pursued a policy or practice that deprives or tends to deprive a class of individuals of employment opportunities because they are female.

The complaint was not that of a single complainant or even of a series of individual complainants; it was a complaint of systemic discrimination practised against an identifiable group.

The Tribunal received testimony from 50 witnesses during 33 days of hearings and, in due course, rendered a decision of some 175 pages. The decision records in detail the evidence of Mr. Yvon Masse, Vice-President of the St. Lawrence Region of Canadian National. Mr. Masse spoke of a study, apparently prepared in 1974 at the request of the then President of CN, Mr. Robert Bandeen, entitled "Canadian National Action Programs— Women", and commonly referred to as the Boyle/ Kirkman Report. The Report identified three problems:

1. Lack of Definitive Executive Management Commitment

Top management's interest on the issue of women has not been communicated effectively nor have direct actions demonstrated their concern. The majority of managers are understandably perplexed regarding the current and future role of women within CN. CN managers across the system await a definitive policy statement with specific action programs. Executive management must commit themselves to begin to encourage their subordinates to change the environment to one which truly provides equal opportunity. They must convince both men and women that a special emphasis program is needed to utilize the talents of CN women. These actions must begin now in order to assure CN of a new, qualified management resource in the future.

2.Traditional beliefs by managers and women in the many negative myths and stereotypes about working women

Our interviews revealed a disturbing degree of negative attitudes resulting in obvious discriminatory behavior. For example, the majority of women seeking employment are channeled into secretarial positions, whereas, men are guided toward clerical positions which most often lead to promotions to higher level clerical jobs and/or middle management positions. In job bidding situations, women are frequently strongly discouraged from bidding on traditional men's job. Until the negative environment that these attitudes create is improved, equal opportunity for women will never occur.

3.Current personnel policies and procedures

These policies are limited and ineffective as they relate to the majority of women at CN.

The Report revealed that in the early 1970s women workers comprised one third of the total labour force in Canada, holding 14.3 per cent of managerial positions, 41.2 per cent of professional and technical positions, and 72 per cent of all clerical jobs nation-wide. In contrast to the national employment statistics, women constituted approximately 4 per cent of the total CN work force and held less than 0.5 per cent of the senior management jobs.

The attitudes of male personnel at CN towards women were reviewed extensively in the Report. Examples follow:

1. "Women are generally disruptive to the work-force."

2. "Women aren't tough enough to handle supervisory jobs. They fail miserably under pressure."

3. "The best jobs for women are coach cleaners—That's second nature to them."

4. "One big problem adding women to train crews would be policing the morals in the cabooses."

5. Work in the yards is too physically demanding. The weather is too harsh."

6. "Women cannot do the physical aspects of a CN conductor's job.There's too much handling of drunks, transients and undesirables."

7. "Women have no drive, no ambition, no initiative."

8. "A woman can't combine a career and family responsibilities."

9. "The 'old boy network' for promotions is very strong at CN. This naturally inhibits women's advance ment."

10. "My department is all male—they don't want a woman snooping around."

11. "Railroading is a man's sport—there's no room for women."

12. "Unless I'm forced, I won't take a woman."

The Report also included a small number of comments from male CN employees which tended to favour the participation of women in the CN work force:

1. "Women are a vast, untapped resource we have over looked until now."

2. "Women are the same as men—as long as they do the job, they should get hired, developed and promoted."

3. "We are guilty of unconscious discrimination against women by never identifying and developing their talents."

Women at CN were very conscious of the generally negative attitude of male supervisors, the Report revealed:

1. "We always hear—'You're taking a job from a man.' "

2. "We're at the mercy of the individual supervisor. If he's against women, we're sunk."

3. "When my Supervisor heard that he had to take two women, you should have heard the uproar he made in front of us."

The Boyle/Kirkman Report concluded with specific recommendations concerning the recruitment of women to CN:

CN needs to adopt a well-planned, aggressive program for the recruitment of women.

The following are some suggested actions which could be included in the recruitment program:

A.Establish numeric objectives by level for the recruitment of women.

B.Train all the personnel recruiters about how to interview women effectively.

C.Develop new avenues for locating women:

(1) Advertise in women's periodicals

(2) Work with women's search agencies

(3) Specify women candidates wanted from all search agencies

(4) Encourage women referrals from employees

(5) Identify an individual within Personnel who could provide immediate follow-up on resumes and other leads regarding potential women candidates. Be prepared to act fast.

In July, 1978 a document entitled "Equal Opportunities Program" was sent to senior managers of the St. Lawrence Region of CN by Mr. Masse, enumerating three overarching objectives with respect to the participation of women in CN:

1. An increase in the total number of female employees at CN;

2. An increase in the number of female management employees;

3. An increase in the number of females in positions for which men only were traditionally hired.

The 1978 document contained a rather general program of action with five elements:

1. Hire female employees;

2. Increase receptiveness to female employees at CN;

3. Support the female employees at CN in their efforts to adapt and progress;

4. Project a public image of a company that is in favour of hiring female employees;

5. Periodically analyse the evolution of female manpow er at CN.

It should be noted that these objectives were far less rigorous than those recommended in the CN-commissioned Boyle/Kirkman Report.

In January 1979, CN published a study entitled "Women in CN Status Report" which concluded that, systemically, progress had been slow, and in fact hardly merited being called "progress" at all. In spite of a decrease in the number of men in the CN work force, the number of women as a percentage of the work force had only increased by 1.61 per cent since 1974 when the Boyle/Kirkman Report was prepared. One section of the 1979 review carried this rubric: "Lingering Belief that Men Have First Claim to jobs".

By February 18, 1982, 155 complaints against CN had been lodged with the Human Rights Commission. In due course, the Commission set up the Human Rights Tribunal to consider the "class" complaint set out above.

Thirteen women testified before the Tribunal as to their experience as candidates or employees with CN. One of the witnesses, Ms. Carla Nemeroff, detailed some of the problems she faced as the only woman in her work place:

They told me they did not want me there. How did they behave? Well, they tried to confuse me. Instead of telling me things like two or three moves at a time, which is all you have to do, they would tell me about 15 moves in a row, like talking really quickly, using the numbers, like this "take a locomotive, put it there, go here, go there", you know, like really—so that I would get confused, or they would tell me to jump off the train at a switch, I would get off at the switch, and they would leave me at the switch, and they would not tell me what they were doing, they would leave me there, or they would just go off on break, and they would not tell me they were going on break. Sometimes they would leave me at a switch, or at an engine. They would say "go release the brakes on that engine and wait for my signal"; I would never hear the signal, they would go off and eat lunch and leave me there. They used to do that all the time.

According to the testimony, women were subjected to extremely unpleasant treatment by their malecolleagues:

Another time, a few guys—we were on break sort of hanging around outside because it was warm out; a few guys jumped me and pretended they were going to rape me. I found that quite offensive.

Then, another time, I was bringing a train into the shop—you see, I was not a cleaner any more; I was signalling, and I was bringing a train into the shop. The boss yelled out something obscene to distract me from my work, and it was very dangerous.

By the end of 1981, there were only 57 women in "blue-collar" posts in the St. Lawrence Region of CN, being a mere 0.7 per cent of the blue-collar labour force in the region. There were 276 women occupying unskilled jobs in all the regions where CN operated, again amounting to only 0.7 per cent of the unskilled work force. By contrast, women represented, in 1981, 40.7 per cent of the total Canadian labour force. At the time, women constituted only 6.11 per cent of the total work force of CN. Among blue-collar workers in Canada, 13 per cent were women during the period January to May 1982, yet female applicants for blue-collar jobs at CN constituted only 5 per cent of the total applicant pool.

The markedly low rate of female participation in so-called "non-traditional" occupations at Canadian National, namely occupations in which women typically have been significantly under-represented considering their proportion in the work force as a whole, was not fortuitous. The evidence before the Tribunal established clearly that the recruitment, hiring and promotion policies at Canadian National prevented and discouraged women from working on blue-collar jobs. The Tribunal held, a finding not challenged in this Court, that CN had not made any real effort to inform women in general of the possibility of filling non-traditional positions in the company. For example, the evidence indicated that Canadian National's recruitment program with respect to skilled crafts and trade workers was limited largely to sending representatives to technical schools where there were almost no women. When women presented themselves at the personnel office, the interviews had a decidedly "chilling effect" on female involvement in non-traditional employment; women were expressly encouraged to apply only for secretarial jobs. According to some of the testimony, women applying for employment were never told clearly the qualifications which they needed to fill the blue-collar job openings. Another hurdle placed in the way of some applicants, including those seeking employment as coach cleaners, was to require experience in soldering. Moreover, the personnel office did not itself do any hiring for blue-collar jobs. Instead, it forwarded names to the area foreman, and Canadian National had no means of controlling the decision of the foreman to hire or not to hire a woman. The evidence indicated that the foremen were typically unreceptive to female candidates.

II

The Earlier Judgments

1. The Human Rights Tribunal

The Earlier Judgments

The Human Rights Tribunal concluded that it was essential to impose upon CN a special employment program if the proportion of women in blue-collar jobs at CN was to mirror even roughly the proportion of women in similar jobs across the country, namely 13 per cent. It should be stressed that this goal appears to be modest considering that the 13 per cent participation rate of women in blue-collar jobs across Canada at the time arguably constituted a significant under-representation of women in that segment of the labour market.

For greater clarity, the Tribunal stated that its objective was simply to increase to 13 per cent the female work force in non-traditional jobs at CN in the St. Lawrence Region. To that end, the Tribunal made the following order:

ORDER

FOR THE ABOVE REASONS this Tribunal, concluding that there are in the St Lawrence Region of CN certain hiring policies or practices that are discrimina tory for the purpose of section 10 of the Canadian Human Rights Act, and that these practices are not based on bona fide occupational requirements for the purpose of section 14 of the said Act, makes the following order, according to the powers conferred upon it by section 41:

PERMANENT MEASURES FOR

NEUTRALIZATION OF CURRENT POLICIES

AND PRACTICES

1. CN shall immediately discontinue the use of the Bennett test for entry level positions other than apprentice positions, and, within one year of the time of this decision and for the same positions, shall discontinue all mechanical aptitude tests that have a negative impact on women and are not warranted by the aptitude requirements of the positions being applied for.

2. CN shall immediately discontinue all practices pursued by foremen or others in which female candidates undergo physical tests not required of male candidates, mainly the test which consists of lifting a brakeshoe with one arm.

3. CN shall immediately discontinue the requirement for welding experience for all entry level positions, with the exception of apprentice positions.

4. CN shall modify its system for the dissemination of information on positions available. More specifically, within the period of one year it shall take the most suitable measures to inform the general public of all positions available.

5. CN shall immediately change the reception practices in its employment office to give female candidates complete, specific and objective information on the real requirements of non-traditional positions.

6. CN shall immediately modify its system of interviewing candidates; in particular, it shall ensure that those responsible for conducting such interviews are given strict instructions to treat all candidates in the same way, regardless of their sex.

7. Should CN wish to continue to grant foremen the power to refuse to hire persons already accepted by the employment office, it shall immediately issue a specific directive to the effect that no one shall be rejected on the basis of sex.

8.CN shall continue to implement the measures already adopted in its directive on sexual harassment with a view to eliminating from the workplace all forms of sexual harassment and discrimination.

SPECIAL TEMPORARY MEASURES

1. Within the period of one year and until the percentage of women in non-traditional jobs at CN has reached 13, CN shall undertake an information and publicity campaign inviting women in particular to apply for non-traditional positions.

2. Whereas we feel that the process of change in CN's St Lawrence Region must be accelerated and preferential measures for women are required;

—Whereas the employer must be given a certain measure of flexibility in view of the uncertainty surrounding the question of how many qualified female workers are available;

—Whereas ideally, in order to create as soon as possible a critical mass that would allow the system to continue to correct itself, we would be inclined to require over the coming years, until the objective of 13% is achieved, the hiring of women to fill at least one non-traditional position out of every three;

—Whereas for the sake of giving more latitude and flexibility to CN in the methods employed to achieve the desired objective, we feel that it would be more prudent to require a ratio lower than one in three for the hiring of women for non-traditional positions at CN;

ACCORDINGLY, Canadian National is ordered to hire at least one woman for every four non-traditional positions filled in the future. This measure shall take effect only when CN employees who have been laid off but who are subject to recall have been recalled by CN, but not before one year has elapsed from the time of this decision, in order to give CN a reasonable length of time to adopt measures to comply with this order. When it is in effect, daily adherence to the one-in-four ratio will not be required, in order to give the employer more choice in the selection of candidates. However, it must be complied with over each quarterly period until the desired objective of having 13% of non-traditional positions filled by women is achieved.

3. Within a period of two months of this decision, CN shall appoint a person responsible with full powers to ensure the application of the special temporary measures and to carry out any other duties assigned to him by CN to implement this decision.

SUBMISSION OF DATA

CN SHALL SUBMIT TO THE COMMISSION:

1. Within 20 days of the introduction of the above-mentioned special temporary measures, an initial inventory of the number of blue-collar workers in the CN's St Lawrence Region, by sex and by position.

2.Within 20 days of the end of each quarterly period after the above-mentioned special temporary measures have begun to be applied, and for the entire duration of the said measures, after forwarding a copy to ATF, a report containing:

(a) a list indicating the name, sex, title and duties, date hired and employment sector of every person hired in the St Lawrence Region during the previous quarter;

(b) a detailed statement of the efforts made by CN to recruit female candidates for non-traditional positions during the previous quarter;

(c) a breakdown, by sex, of: the total number of persons who applied for non-traditional positions at CN during the previous quarter; and the total number of persons who completed, underwent or failed every test or written examination to fill a non-traditional position. This list shall include the score and rank of every person who passed the test or examination;

(d) the name, sex and changes in titles and duties, or changes in status of every employee hired for non-traditional positions after the special temporary measures come into force.

3. A statement giving the name, official title and date of appointment of the person in charge of applying the above-mentioned special temporary measures, within twenty days of his or her appointment.

It will be observed that the first part of the Order required CN to cease certain discriminatory hiring and employment practices and to alter others; the second part set a goal of 13 per cent female participation in the targeted job positions, and established a requirement to hire at least one woman to fill every four job openings until that goal was reached; and the third part required the filing of periodic reports with the Commission.

2. The Federal Court of Appeal

The Federal Court of Appeal

Canadian National made an application to the Federal Court of Appeal under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside the Decision of the Tribunal on the following grounds:

1. That the Tribunal appointed by the Canadian Human Rights Commission erred in law by basing its Decision on erroneous findings of fact, made without regard for the material before it. Such findings are contrary to, and unsupported by the evidence.

2. That the Tribunal appointed by the Canadian Human Rights Commission erred in law and exceeded its jurisdiction by imposing upon your Applicant a specific and detailed program containing mandatory quotas to redress alleged discriminatory practices, contrary to Section 41 of the Canadian Human Rights Act.

3. That the Tribunal appointed by the Canadian Human Rights Commission erred in law and exceeded its jurisdiction by ordering that your Applicant carry out said program without consultation with the Canadian Human Rights Commission as required by Section 41(2)(a) of the Canadian Human Rights Act.

In fact, both before the Federal Court of Appeal and before this Court, issue was joined primarily on the second ground of appeal, the jurisdiction of the Tribunal under s. 41(2)(a) of the Canadian Human Rights Act to make the impugned order.

Section 41(2) reads:

41. (1) …

(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, subject to subsection (4) and section 42, it may make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in such order any of the following terms that it considers appropriate:

(a) that such person cease such discriminatory practice and, in consultation with the Commission on the general purposes thereof, take measures, including adoption of a special program, plan or arrangement referred to in subsection 15(1), to prevent the same or a similar practice occurring in the future;

(b) that such person make available to the victim of the discriminatory practice on the first reasonable occasion such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;

(c) that such person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and any expenses incurred by the victim as a result of the discriminatory practice; and

(d) that such person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and any expenses incurred by the victim as a result of the discriminatory practice.

Hugessen J. allowed the application and set aside part of the Tribunal's Order, 1985 CanLII 5531 (FCA), [1985] 1 F.C. 96. Insofar as the Tribunal's findings of discrimination were concerned, Hugessen J. was satisfied that no ground had been shown which would justify intervention by the Court under the provisions of s. 28 of the Federal Court Act. Likewise, he was not persuaded that the Tribunal committed any excess of jurisdiction in Parts 1 and 3 of the Order under review.

The only part of the Order which gave him concern was the "Special Temporary Measures" section contained in Part 2 and, in particular, paragraph 2 thereof, which imposed a hiring goal of 25 per cent on CN until such time as the goal of 13 per cent female involvement in the non-traditional work force had been achieved.

Justice Hugessen's judgment turned on his interpretation of the words "take measures … to prevent" in the English text, and "prendre des mesures destinées à prévenir" in the French text of s. 41(2)(a). The crux of the judgment, it appears to me, is found in the following short paragraph which draws a sharp and determinative distinction between "prevention" and "cure" (at p. 102):

The sole permissible purpose for the order is prevention; it is not cure. The text requires that the order look to the avoidance of future evil. It does not allow restitution for past wrongs.

Hugessen J. quoted s. 15(1) of the Act, to which s. 41(2)(a) makes reference. It is the subsection which deals expressly with employment equity programs and it reads:

15. (1) It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, national or ethnic origin, colour, religion, age, sex, marital status or physical handicap of members of that group, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.

Hugessen J. dealt with s. 15(1) by stating that the programs which s. 15(1) protects as non-discriminatory are voluntary in nature; by contrast, the measures which s. 41(2) (a) permits are imposed by order of the Tribunal. Section 41(2)(a) is limited to prevention in the future whereas s. 15(1) allows "the sins of the fathers to be visited upon the sons". He therefore held that when the Tribunal exercises its power under s. 41 to order the adoption of a program envisaged by s. 15, it can only order that kind of program which will meet the purposive requirements of s. 41. Hugessen J. was willing to concede that the fixing of a goal of 13 per cent women in non-traditional posts in CN in the St. Lawrence Region was a legitimate means of setting a measurable standard against which the achievement of the ultimate purpose of the order could be tested, but he emphasized that the purpose, as required by law, could only be the prevention of future acts of discrimination.

The judge went on to examine the requirement that until the goal was achieved, CN had to hire one woman for each four entries into its unskilled blue-collar labour force. He quoted inter alia the following passage from the decision of the Tribunal:

It will be difficult in the case of CN to remedy the marked disparity resulting from years of discriminatory practices. It is to be hoped that, with time, the imbalance will be reduced. However, it is our view that this will not be possible without the imposition of an affirmative action program.

He concluded (at p. 104):

There is nothing of prevention in this. The measure imposed is, and is stated to be, a catch-up provision whose purpose can only be to remedy the effects of past discriminatory practices. That purpose is not one which is permitted by section 41.

Hugessen J. confessed to a "certain sense of frustration" in coming to the conclusion that the Tribunal had exceeded its powers in making the order, stating: "On a purely impressionistic basis, neither the goal of 13% nor the imposed hiring quota of 25% strike me as being per se unreasonable".

I have dealt at some length with the judgment of Hugessen J. because (i) it is the majority judgment of the Court and (ii) with great respect, I disagree with it. Pratte J., in a short judgment, sided with Hugessen J. in the view that the Tribunal's power was limited to prescribing measures for the purpose of preventing the recurrence of the discriminatory practices which had been found to exist and not to remedy the consequences of past discrimination. Pratte J. would have gone further than Hugessen J., however, and would also have set aside the second and third parts of the Order of the Tribunal. MacGuigan J. wrote a strong and cogent dissent to which I will make reference below, concluding that the Order of the Tribunal was within its jurisdiction under s. 41(2)(a). It is a view which I share.

The Attorney General of Canada did not file a factum or make any representations in the proceedings before our Court.

III

Interpreting Human Rights Legislation

Interpreting Human Rights Legislation

Let me emphasize at the outset that the Human Rights Tribunal's findings of fact that the hiring practices of Canadian National in the St. Lawrence Region constituted systemic discrimination are not at issue before this Court. Moreover, the argument that the Human Rights Tribunal lacked jurisdiction because the Commission failed first to consult with CN in breach of s. 41(2)(a) was not pursued with great vigour. In my view, the lack of emphasis upon that argument was wise for it holds no merit. The real controversy relates solely to the legality of the remedial order issued by the Human Rights Tribunal.

I do not think the answer to the question posed in this appeal will be found by applying strict grammatical construction to the last twelve words of s. 41(2)(a). I say this for at least three reasons. First, such an approach renders meaningless the specific reference back to s. 15(1) contained in s. 41(2)(a). Section 15(1) of the Act is designed to save employment equity programs from attack on the ground of "reverse discrimination". If s. 41(2)(a) is read to limit the scope of such programs, no effective mandatory employment equity program could be undertaken in any circumstances, and the legislative protection offered to the principle of employment equity would be nullified. Second, in focussing solely upon the limited purposive aspect of s. 41(2)(a) itself, the dominant purpose of the Canadian Human Rights Act is ignored. Yet, we are not left in the dark as to the purpose of the Act as a whole. The drafters saw fit to include a specific statement of purpose in s. 2:

2. The purpose of this Act is to extend the present laws in Canada to give effect, within the purview of matters coming within the legislative authority of the Parliament of Canada, to the following principles:

(a) every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex or marital status, or conviction for an offence for which a pardon has been granted or by discriminatory employment practices based on physical handicap ….

Third, the case-law of this Court, some of which post-dates the judgment of the Federal Court of Appeal in the present proceedings, has a direct bearing on the outcome of this appeal. The Court has spoken on the proper interpretive attitude towards human rights codes and acts.

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained. See s. 11 of the Interpretation Act, R.S.C. 1970, c. I-23, as amended. As Elmer A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87 has written:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The purposes of the Act would appear to be patently obvious, in light of the powerful language of s. 2. In order to promote the goal of equal opportunity for each individual to achieve "the life that he or she is able and wishes to have", the Act seeks to prevent all "discriminatory practices" based, inter alia, on sex. It is the practice itself which is sought to be precluded. The purpose of the Act is not to punish wrongdoing but to prevent discrimination.

The last point is an important one and it deserves to be underscored. There is no indication that the purpose of the Canadian Human Rights Act is to assign or to punish moral blameworthiness. No doubt, some people who discriminate do so out of wilful ignorance or animus. Many of the first anti-discrimination statutes focussed solely upon the behaviour of such individuals, requiring proof of "intent" to discriminate before imposing any sanctions. See Walter S. Tarnopolsky, Discrimination and the Law in Canada (1982), at pp. 109-122. There were two major difficulties with this approach. One semantic problem was a continuing confusion of the notions of "intent" and "malice". The word "intent" was deprived of its meaning in common parlance and was used as a surrogate for "malice". "Intent" was not the simple willing of a consequence, but rather the desiring of harm.

This imputed meaning was coherent in the context of a statute designed to punish moral blame-worthiness. However, as the second problem with a fault-based approach was revealed—that moral blame was too limited a concept to deal effectively with the problem of discrimination—an attempt was made by legislatures and courts to cleanse the word "intent" of its moral component. The emphasis upon formal causality was restored and the intent required to prove discrimination became the intent to cause a discriminatory result. The judgment of the Federal Court of Appeal in Canadian National Railway Co. v. Canadian Human Rights Commission and Bhinder, 1983 CanLII 5037 (FCA), [1983] 2 F.C. 531, is an example of this approach (aff'd on different grounds in Bhinder v. Canadian National Railway Co., 1985 CanLII 19 (SCC), [1985] 2 S.C.R. 561). The difficulty with this development was that "intent" had become so encrusted with the moral overtones of "malice" that it was often difficult to separate the two concepts. Moreover, the imputation of a requirement of "intent", even if unrelated to moral fault, failed to respond adequately to the many instances where the effect of policies and practices is discriminatory even if that effect is unintended and unforeseen. The stated purpose of human rights legislation (in the case of the Canadian Act, to prevent "discriminatory practices") was not fully implemented.

The first comprehensive judicial statement of the correct attitude towards the interpretation of human rights legislation can be found in Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, at p. 158, where Lamer J. emphasized that a human rights code "is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law". This principle of interpretation was further articulated by McIntyre J., for a unanimous Court, in Winnipeg School Division No. I v. Craton, 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150, at p. 156:

Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.

The emphasis upon the "special nature" of human rights enactments was a strong indication of the Court's general attitude to the interpretation of such legislation.

In Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, the Court set out explicitly the governing principles in the interpretation of human rights statutes. Again writing for a unanimous Court, McIntyre J. held, at pp. 546-47:

It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment …, and give it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary—and it is for the courts to seek out its purpose and give it effect. The Code aims at the removal of discrimination.

There can be no doubt that Canadian human rights legislation is now typically drafted to avoid reference to intention. As noted previously, the Canadian Human Rights Act is addressed to "discriminatory practices". The Ontario Human Rights Code, R.S.O. 1980, c. 340, seeks to uphold the "equal dignity" of all men and women by preventing discrimination. In Simpsons-Sears, at p. 547, this Court spoke clearly as to the purpose of the Ontario Code, holding that the reach was wider than intentional discrimination:

It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.

The emphasis upon discriminatory effects was also held by this Court to be central to the purposes of the Canadian Human Rights Act: Bhinder, at p. 586, per McIntyre J. (with whom all other members of the Court concurred on this point).

A necessary implication of the focus upon discriminatory effects was recognized by the Court in Simpsons-Sears. At page 551, McIntyre J. held that, in determining whether an individual or entity had practised discrimination under the relevant legislation, it was appropriate for the Court to consider "adverse effect discrimination", which may be described as the imposition of obligations, penalties or restrictive conditions that result from a policy or practice which is on its face neutral but which has a disproportionately negative effect on an individual or group because of a special characteristic of that individual or group.

The rejection of a necessity to prove intent and the unequivocal adoption of the idea of "adverse effect discrimination" by the courts is the result of a commitment to the purposive interpretation of human rights legislation. An instructive example of the contemporary trend is found in the judgment of the Court of Appeal of Saskatchewan in Canadian Odeon Theatres Ltd. v. Saskatchewan Human Rights Commission, 1985 CanLII 183 (SK CA), [1985] 3 W.W.R. 717, where Vancise J.A. wrote at p. 735:

Generally human rights legislation has been given a broad interpretation to ensure that the stated objects and purposes are fulfilled. A narrow restrictive interpretation which would defeat the purpose of the legislation, that is, the elimination of discrimination, should be avoided.

As discussed above, the Supreme Court in the Simpsons-Sears and Bhinder decisions has already recognized that Canadian human rights legislation is directed not only at intentional discrimination, but at unintentional discrimination as well. In particular, the prohibition of discrimination in the Canadian Human Rights Act has been held to reach situations of "adverse effect discrimination": Bhinder. But unintentional discrimination may occur in another form, with potentially greater consequences in terms of the number of people who are disadvantaged. Section 15(1) of the Act and, by extension s. 41(2)(a), was designed to meet this second problem of "systemic discrimination".

IV

Systemic Discrimination and the Special Temporary Measures Order

Systemic Discrimination and the Special Temporary Measures Order

A thorough study of "systemic discrimination" in Canada is to be found in the Abella Report on equality in employment. The terms of reference of the Royal Commission instructed it "to inquire into the most efficient, effective and equitable means of promoting employment opportunities, eliminating systemic discrimination and assisting individuals to compete for employment opportunities on an equal basis." (Order in Council P.C. 1983-1924 of 24 June 1983). Although Judge Abella chose not to offer a precise definition of systemic discrimination, the essentials may be gleaned from the following comments, found at p. 2 of the Abella Report:

Discrimination … means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics ….

It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone's potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.

This is why it is important to look at the results of a system ….

In other words, systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of "natural" forces, for example, that women "just can't do the job" (see the Abella Report, pp. 9-10). To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged. The Tribunal sought to accomplish this objective through its "Special Temporary Measures" Order. Did it have the authority to do so?

Section 41(2) of the Canadian Human Rights Act lists the orders that a Tribunal may make if it determines that a person has engaged in a discriminatory practice. Among the potential orders is an order for "measures" to be taken under s. 41(2)(a) "including adoption of a special program, plan or arrangement referred to in subsection 15(1), to prevent the same or a similar practice occurring in the future." The "program, plan or arrangement" referred to in s. 15(1) is any mechanism "designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to" inter alia, sex.

Because of his stated emphasis upon the "ordinary grammatical construction" of s. 41(2)(a), Hugessen J., for the majority in the Federal Court of Appeal, offered this reading of the paragraph (at p. 102):

Reduced to its essentials, this text permits the Tribunal to order the taking of measures aimed at preventing the future occurrence of a discriminatory practice on the part of a person found to have engaged in such a practice in the past.

He stressed that "[t]he sole permissible purpose for the order is prevention" and that the text "does not allow restitution for past wrongs." Therefore, the "program, plan or arrangement" authorized by reference to s. 15(1) would necessarily be limited by the language of s. 41(2) (a) to a mechanism designed "to prevent the same or a similar practice occurring in the future". Hugessen J. recognized the special difficulties involved in dealing with systemic discrimination (at p. 105):

… I recognize that by its very nature systemic discrimination may require creative and imaginative preventive measures. Such discrimination has its roots, not in any deliberate desire to exclude from favour, but in attitudes, prejudices, mind sets and habits which may have been acquired over generations. It may well be that hiring quotas are a proper way to achieve the desired result.

Hugessen J. simply did not believe, without some precise factual showing, that specific hiring goals could be related to prevention, and thereby fall within s. 41(2)(a). The Special Temporary Measures ordered by the Tribunal were struck down because the employment objectives imposed in the Order were expressed in terms which, in Justice Hugessen's view, indicated that the objective was remedial and not preventive.

To evaluate this argument it is important to remember exactly what was ordered by the Human Rights Tribunal. The impugned section of the Order was headed "Special Temporary Measures" and the heart of the employment equity program was contained in paragraph 2:

… Canadian National is ordered to hire at least one woman for every four non-traditional positions filled in the future …. When it is in effect, daily adherence to the one-in-four ratio will not be required in order to give the employer more choice in the selection of candidates.

However, it must be complied with over each quarterly period until the desired objective of having 13% of non-traditional positions filled by women is achieved.

It should be underscored once again that the objective of 13 per cent female participation was not arbitrary, for it corresponded to the national average of women involved in the non-traditional occupations.

In his dissenting opinion in the Federal Court of Appeal, MacGuigan J. accepted, as I do, that s. 41(2)(a) was designed to allow human rights tribunals to prevent future discrimination against identifiable protected groups, but he held that "prevention" is a broad term and that it is often necessary to refer to historical patterns of discrimination in order to design appropriate strategies for the future. He noted the deep roots of discrimination against women at CN. It is an uncontradicted fact that the hiring and promotion policies of CN and the enormous problems faced by the tiny minority of women in the blue-collar work force amounted to a systematic denial of women's equal employment opportunities.

Justice MacGuigan's point is made abundantly clear when one considers the context in which the challenged order was issued. It bears repeating that the Tribunal had found that at the end of 1981 only 0.7 per cent of blue-collar jobs in the St. Lawrence Region of Canadian National were held by women. The Tribunal found furthermore that the small number of women in non-traditional jobs tended to perpetuate exclusion and, in effect, to cause additional discrimination. Moreover, Canadian National knew that its policies and practices, although perhaps not discriminatory in intent, were discriminatory in effect, yet had done nothing substantial to rectify the situation. When confronted with such a case of "systemic discrimination", it may be that the type of order issued by the Tribunal is the only means by which the purpose of the Canadian Human Rights Act can be met. In any program of employment equity, there simply cannot be a radical dissociation of "remedy" and "prevention". Indeed there is no prevention without some form of remedy. The point was explained clearly by Professors Greschner and Norman in their Case Comment on the majority judgment of the Federal Court of Appeal in this case, found at (1985), 63 Can. Bar Rev. 805, at p. 812. They emphasize that an employment equity program

… tries to break the causal links between past inequalities suffered by a group and future perpetuation of the inequalities. It simultaneously looks to the past and to the future, with no gap between cure and prevention. Any such program will remedy past acts of discrimination against the group and prevent future acts at one and the same time. That is the very point of affirmative action.

This point demands repetition …. When a program is said to be aimed at remedying past acts of discrimination, such as by bringing women into blue-collar occupations, it necessarily is preventing future acts of discrimination because the presence of women will help break down generally the notion that such work is man's work and more specifically, will help change the practices within that workplace which resulted in the past discrimination against women. From the other perspective, when a program is said to be aimed at preventing future acts of discrimination (again by bringing women into blue-collar occupations), it necessarily is also remedying past acts of discrimination because women as a group suffered from the discrimination and are now benefitting from the program.

Unlike the remedies in s. 41(2) (b)-(d), the "remedy" under s. 41(2)(a) is directed towards a group and is therefore not merely compensatory but is itself prospective. The benefit is always designed to improve the situation for the group in the future, so that a successful employment equity program will render itself otiose.

To see more clearly why the Special Temporary Measures Order is prospective, it would be helpful to review briefly the theoretical underpinnings of employment equity programs. I have already stressed that systemic discrimination is often unintentional. It results from the application of established practices and policies that, in effect, have a negative impact upon the hiring and advancement prospects of a particular group. It is compounded by the attitudes of managers and co-workers who accept stereotyped visions of the skills and "proper role" of the affected group, visions which lead to the firmly held conviction that members of that group are incapable of doing a particular job, even when that conclusion is objectively false. An employment equity program, such as the one ordered by the Tribunal in the present case, is designed to break a continuing cycle of systemic discrimination. The goal is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past, although some such individuals may be beneficiaries of an employment equity scheme. Rather, an employment equity program is an attempt to ensure that future applicants and workers from the affected group will not face the same insidious barriers that blocked their forebears.

An employment equity program thus is designed to work in three ways. First, by countering the cumulative effects of systemic discrimination, such a program renders further discrimination pointless. To the extent that some intentional discrimination may be present, for example in the case of a foreman who controls hiring and who simply does not want women in the unit, a mandatory employment equity scheme places women in the unit despite the discriminatory intent of the foreman. His battle is lost.

Secondly, by placing members of the group that had previously been excluded into the heart of the work place and by allowing them to prove ability on the job, the employment equity scheme addresses the attitudinal problem of stereotyping. For example, if women are seen to be doing the job of "brakeman" or heavy cleaner or signaller at Canadian National, it is no longer possible to see women as capable of fulfilling only certain traditional occupational roles. It will become more and more difficult to ascribe characteristics to an individual by reference to the stereotypical characteristics ascribed to all women.

Thirdly, an employment equity program helps to create what has been termed a "critical mass" of the previously excluded group in the work place. This "critical mass" has important effects. The presence of a significant number of individuals from the targeted group eliminates the problems of "tokenism"; it is no longer the case that one or two women, for example, will be seen to "represent" all women. See Carol Agocs, "Affirmative Action, Canadian Style" (1986), 12 Canadian Public Policy—Analyse de politiques 148, at p. 149. Moreover, women will not be so easily placed on the periphery of management concern. The "critical mass" also effectively remedies systemic inequities in the process of hiring:

There is evidence that when sufficient minorities/women are employed in a given establishment, the informal processes of economic life, for example, the tendency to refer friends and relatives for employment, will help to produce a significant minority [or female] applicant flow.

(Alfred W. Blumrosen, "Quotas, Common Sense and Law in Labour Relations: Three Dimensions of Equal Opportunity", in Walter S. Tarnopolsky, ed., Some Civil Liberties Issues of the Seventies (1975), Toronto: Osgoode Hall Law School/York University, 5, at p. 15).

If increasing numbers of women apply for non-traditional jobs, the desire to work in blue-collar occupations will be less stigmatized. Personnel offices will be forced to treat women's applications for non-traditional jobs more seriously. In other words, once a "critical mass" of the previously excluded group has been created in the work force, there is a significant chance for the continuing self-correction of the system.

When the theoretical roots of employment equity programs are exposed, it is readily apparent that, in attempting to combat systemic discrimination, it is essential to look to the past patterns of discrimination and to destroy those patterns in order to prevent the same type of discrimination in the future. It is for this reason that the language of the Tribunal's Order for Special Temporary Measures may appear "remedial". In any case, as was stressed by MacGuigan J. in his dissent, the important question is not whether the Tribunal's order tracked the precise wording of s. 41(2)(a), but whether the actual measures ordered could be construed fairly to fall within the scope of the section. One should look to the substance of the order and not merely to its wording.

For the sake of convenience, I will summarize my conclusions as to the validity of the employment equity program ordered by the Tribunal. To render future discrimination pointless, to destroy discriminatory stereotyping and to create the required "critical mass" of target group participation in the work force, it is essential to combat the effects of past systemic discrimination. In so doing, possibilities are created for the continuing amelioration of employment opportunities for the previously excluded group. The dominant purpose of employment equity programs is always to improve the situation of the target group in the future. MacGuigan J. stressed in his dissent that "the prevention of systemic discrimination will reasonably be thought to require systemic remedies" (p. 120). Systemic remedies must be built upon the experience of the past so as to prevent discrimination in the future. Specific hiring goals, as Hugessen J. recognized, are a rational attempt to impose a systemic remedy on a systemic problem. The Special Temporary Measures Order of the Tribunal thus meets the requirements of s. 41(2)(a) of the Canadian Human Rights Act. It is a "special program, plan or arrangement" within the meaning of s. 15(1) and therefore can be ordered under s. 41(2)(a). The employment equity order is rationally designed to combat systemic discrimination in the Canadian National St. Lawrence Region by preventing "the same or a similar practice occurring in the future".

A secondary problem must now be addressed, the fact that the Order of the Tribunal was expressed in terms of an employment goal, rather than a hiring goal. This methodology might increase the belief that the Order was remedial and not, properly speaking, preventive. The Tribunal held, however, that the systemic discrimination at CN occurred not only in hiring but once women were on the job as well. The evidence revealed that there was a high level of publicly expressed male antipathy towards women which contributed to a high turnover rate amongst women in blue-collar jobs. As well, many male workers and supervisors saw any female worker in a non-traditional job as an upsetting phenomenon and as a "job thief". To the extent that promotion was dependent upon the evaluations of male supervisors, women were at a significant disadvantage. Moreover, because women generally had a low level of seniority, they were more likely to be laid off. For the employment equity program to be effective in creating the "critical mass" and in destroying stereotypes, the goals had to be expressed in terms of actual employment. Otherwise the reasonable objectives of the scheme would have been defeated. The dominant purpose remained to improve the employment situation for women at CN in the future.

V

The Cross-Appeal

The Cross-Appeal

Canadian National filed a cross-appeal by which it sought to set aside the entire decision and Order of the Tribunal for the reasons set out in the judgment of Pratte J. in the Federal Court of Appeal. In view of my disposition of the appeal, it is obviously unnecessary to discuss the merits of the cross-appeal.

VI

Conclusion

Conclusion

I would allow the appeal with costs, reverse the decision of the Federal Court of Appeal and restore in its entirety the Order of the Human Rights Tribunal. The cross-appeal is therefore dismissed with costs.

Appeal allowed with costs and cross-appeal dismissed with costs.

Solicitors for Action Travail des Femmes: Rivest, Castiglio, Castiglio, LeBel & Schmidt, Montréal.

Solicitors for the Canadian National Railway Co.: Alphonse Giard and Rolland Boudreau, Montréal.

Solicitors for the Canadian Human Rights Commission: René Duval and Anne Trotier, Ottawa.