Syndicat des Employés de Production d Québec et et l'Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 SCR 879

Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879

Syndicat des employés de production du Québec et de l'Acadie Appellant

v.

Canadian Human Rights Commission Respondent

and

Canadian Broadcasting Corporation and the Attorney General of Canada Mis en cause

indexed as: syndicat des employés de production du québec et de l'acadie v. canada (canadian human rights commission)

File No.: 20181.

1989: February 2; 1989: October 12.

Present: Dickson C.J. and McIntyre*, Lamer, Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.

on appeal from the federal court of appeal

Courts -- Jurisdiction -- Federal Court of Appeal -- Judicial review -- Canadian Human Rights Commission dismissing complaint of discrimination pursuant to s. 36(3) of the Canadian Human Rights Act -- Whether Commission's decision under s. 36(3) required by law to be made on a judicial or quasi‑judicial basis -- If so, whether the Commission committed a reviewable error -- Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 -- Canadian Human Rights Act, S.C. 1976‑77, c. 33, ss. 11, 36(3).

The appellant filed a complaint with the Canadian Human Rights Commission pursuant to the equal pay for work of equal value provisions of s. 11 of the Canadian Human Rights Act (the "Act"). The main complaint alleged that employees in the Section fabrication et manipulation des décors of the CBC, who were predominantly male, were paid more for work of equal value than employees in the Section fabrication et manipulation des costumes, who were predominantly female. Pursuant to s. 35 of the Act, an investigator was appointed to investigate the matter and prepare a report. The investigator tested CBC's existing classification levels against classification levels identified by Commission experts using first the former CBC job evaluation plan and then the Aiken Plan. During the investigation, the investigator was in constant touch with the appellant and the CBC and obtained the benefit of their comments from time to time. Some discrepancies were uncovered by the investigator but were not found to be significant in light of the overall consistency of the ratings. The investigator concluded that the existing salary disparities resulted from job misclassification. The investigator considered the group rather than individual members and examined the system rather than focussing on individual complaints. This is based on the Commission's interpretation of s. 11 of the Act. He recommended that the complaint be rejected by the Commission as unsubstantiated.

The investigator then sent appellant a copy of his report which explained the methodology (including references to the Aiken Plan) and the results of its application. This is based also on the Commission's interpretation of s. 11 of the Act. The appellant made written submissions to the Commission. The Commission considered these submissions and the investigator's report and, without a hearing, dismissed the complaint as unsubstantiated pursuant to s. 36(3) of the Act. The Federal Court of Appeal dismissed appellant's s. 28 application to review and set aside the Commission's decision. This appeal is to determine (1) whether the Commission's decision under s. 36(3) was one that is required to be made on a judicial or quasi‑judicial basis within the meaning of s. 28 of the Federal Court Act; and whether the Commission committed a reviewable error.

Held (Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.

Per Lamer, La Forest and Sopinka JJ.: The Federal Court of Appeal had no jurisdiction, under s. 28 of the Federal Court Act, to review the Commission's decision made pursuant to s. 36(3) of the Act. The Commission's decision was not one that was required to be made on a judicial or quasi‑judicial basis. Section 36(3) provides for two alternative courses of action upon receipt of the investigator's report: (1) the Commission may adopt the report "if it is satisfied" that the complaint has been substantiated (s. 36(3)(a)) and, in such case, a tribunal will be appointed under s. 39 of the Act unless the complaint is resolved by settlement; and (2) the Commission may dismiss the complaint if "it is satisfied that the complaint has not been substantiated" (s. 36(3)(b)). This will occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding; rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal; rather the process moves from the investigatory stage to the judicial or quasi‑judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, in view of the administrative nature of the Commission's function, and giving effect to the statutory provisions, the Commission was not required to comply with the formal rules of natural justice. The Commission, however, was required to comply with the rules of procedural fairness in accordance with the principles in Nicholson.

Although it is not necessary to decide this issue, the Commission committed no reviewable error in dismissing appellant's complaint. There was no basis in this case for suggesting that there was a denial of natural justice or procedural fairness. The appellant was informed of the substance of the evidence obtained by the investigator and put before the Commission and it was given an opportunity to respond to this evidence and make all relevant representations. The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. All this was done.

The Commission's failure to give reasons in this case was not a basis for review. The appellant was notified that the Commission had decided that the positions which were the subject of comparison did not constitute work of equal value. The basis for this conclusion was the investigator's report which was in the hands of the appellant. Accordingly, the latter was fully apprised of the reasons for the Commission's decision.

Finally, the appellant was informed of the Commission's interpretation of s. 11 of the Act and the Commission correctly applied that section to the facts of this case. Section 11 is to prohibit discrimination by an employer between "male and female employees" who perform work of equal value; it is not to guarantee individual employees equal pay for work of equal value irrespective of sex.

Per Dickson C.J.: This appeal can be disposed of on jurisdictional and procedural grounds for the reasons given by Sopinka J., and accordingly, it is not necessary or appropriate to deal with the correctness of the Canadian Human Rights Commission's interpretation of s. 11 of the Act.

Per Wilson and L'Heureux‑Dubé JJ. (dissenting): The Commission's decision to dismiss a complaint pursuant to s. 36(3)(b) of the Act is "required by law" to be made on a quasi‑judicial basis and is accordingly reviewable by the Federal Court of Appeal under s. 28 of the Federal Court Act. Three factors supported this conclusion. First, the Commission's function under s. 36(3) is to decide whether a complaint of discrimination is substantiated or not, given the findings set out in the investigator's report. The determination of whether work is of "equal value" within the meaning of s. 11(1) of the Act is a question of law. The Commission must interpret and apply a legal norm between two parties (the appellant and CBC) in an adversarial position. The Commission's function is accordingly closely akin to the adjudicative function traditionally performed by ordinary courts. Second, the Commission's decision constitutes a conclusive determination in respect of fundamentally important individual rights. Third, while the Act contains no express requirement of a hearing prior to the dismissal of a claim under s. 36(3), the provisions of the Act, in particular ss. 36(4), 39(1), 40(1) and 41, are consistent with the imposition of a duty to proceed on a quasi‑judicial basis. The existence of such a duty finds ample support in the case law.

The concept of "equal value" is central to the statutory prohibition against wage discrimination. Assessing the value of work, however, is inherently subject to individual bias and sexual stereotyping. In these circumstances, fairness requires that the job evaluation process be subjected to the purifying effect of the adversarial process. The vulnerability of the job evaluation plan method to individual bias and sexual stereotyping is best minimized by allowing the parties concerned an opportunity to tailor the elements of the testing to the special circumstances of each particular case. The Commission is accordingly under a duty to disclose to the parties at the proper time not only the factual basis of its decision but also the legal basis of its investigation -- namely, its interpretation of the statutory principle of equal pay for work of equal value. The parties must also be allowed to make an informed response to the Commission's interpretation and to urge upon it their own interpretation of the law.

In this case, the Commission failed to disclose the legal basis of its decision at a proper time. While the appellant made written submissions on a number of points in relation to the use of the Aiken plan, these submissions were allowed only after the investigation had proceeded on the basis that the Aiken plan was the only appropriate method to assess whether work was of equal value under s. 11, and that the choice of compensable factors and their relative weights by the Commission were the correct ones in light of that provision. The appellant should have been allowed to make informed submissions with respect to the legal standard of equal value under s. 11, and, if the Aiken method was chosen as that standard, then appellant should also have been heard on the selection and relative weight of the compensable factors as well. Any other aspect of the methodology proposed to be adopted by the Commission which the parties might have felt could unfairly prejudice the assessment of the value of the work could also be dealt at such a hearing. Such a hearing should have been granted so as to give the parties concerned an effective means of advancing their own interpretation of the applicable legal standard before the investigation proceeded. The Commission therefore failed to observe a principle of natural justice in proceeding without affording such an opportunity to the appellant and its decision must be set aside.

Cases Cited

By Sopinka J.

Referred to: Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311; Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373; Martineau v. Matsqui Institution Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602; Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12; Re Dagg and Ontario Human Rights Commission (1979), 1979 1671 (ON SC), 102 D.L.R. (3d) 155; Radulesco v. Canadian Human Rights Commission, 1984 120 (SCC), [1984] 2 S.C.R. 407; Cashin v. Canadian Broadcasting Corp., 1984 5375 (FCA), [1984] 2 F.C. 209; Re Downing and Graydon (1978), 1978 1424 (ON CA), 92 D.L.R. (3d) 355; Northwestern Utilities Ltd. v. City of Edmonton, 1978 17 (SCC), [1979] 1 S.C.R. 684; Blanchard v. Control Data Canada Ltd., 1984 27 (SCC), [1984] 2 S.C.R. 476.

By L'Heureux‑Dubé J. (dissenting)

Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311; Employment and Immigration Commission v. MacDonald Tobacco Inc., 1981 183 (SCC), [1981] 1 S.C.R. 401; Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177; Minister of National Revenue v. Coopers and Lybrand, 1978 13 (SCC), [1979] 1 S.C.R. 495; Brouillette v. Canadian Human Rights Commission (1986), 86 N.R. 393; Labelle v. Canada (Treasury Board) (1987), 76 N.R. 222; Whiteman v. Canada (Canadian Human Rights Commission) (1987), 1987 8582 (FCA), 9 C.H.R.R. D/4944; Attorney General of Quebec v. Udeco Inc., 1984 122 (SCC), [1984] 2 S.C.R. 502; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., 1948 266 (UK JCPC), [1949] A.C. 134; MacBain v. Lederman, 1985 5548 (FCA), [1985] 1 F.C. 856; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114; Robichaud v. Canada (Treasury Board), 1987 73 (SCC), [1987] 2 S.C.R. 84; Latif v. Canadian Human Rights Commission, 1979 4045 (FCA), [1980] 1 F.C. 687; Cashin v. Canadian Broadcasting Corp., 1984 5375 (FCA), [1984] 2 F.C. 209; Radulesco v. Canadian Human Rights Commission, 1984 120 (SCC), [1984] 2 S.C.R. 407; Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143; Corning Glass Works v. Brennan, 417 U.S. 188 (1974); Waddington v. Leicester Council for Voluntary Services, [1977] 2 All E.R. 633; Harmatiuk v. Pasqua Hospital (1982), 1982 4900 (SK HRT), 4 C.H.R.R. D/1177 (Sask. H.R.C.), aff'd (1983) 1983 4725 (SK QB), 4 C.H.R.R. D/1650 (Q.B.); Re Downing and Graydon (1978), 1978 1424 (ON CA), 92 D.L.R. (3d) 355.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 15.

Canadian Human Rights Act, R.S.C., 1985, c. H‑6, s. 44(3) [rep. & sub. c. 31 (1st Supp.), s. 64].

Canadian Human Rights Act, S.C. 1976‑77, c. 33, ss. 11, 22(2) [rep. & sub. 1977‑78, c. 22, s. 5], 26, 32(1), (5), 33, 34(1), 35, 36, 39(1), 40(1), (2), 41(1), (2), 65.

Equal Pay Act of 1963, 29 U.S.C. {SS} 206(d).

Equal Wages Guidelines, 1986, SOR\86‑1082, s. 16.

Equal Wages Guidelines, SI/78‑155, s. 3.

Equal Wages Guidelines, amendment, SI/82‑2.

Fair Labor Standards Act of 1938, 52 Stat. 1060.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28(1).

Human Rights Code, 1981, S.O. 1981, c. 53, s. 32.

Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, s. 20 [am. 1985, c. 33, s. 9].

Statute Law (Canadian Charter of Rights and Freedoms) Amendment Act, S.C. 1985, c. 26, ss. 68, 69.

Authors Cited

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

Blumrosen, Ruth G. "Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964" (1979), 12 U. Mich. J. L. Ref. 397.

Canada. Law Reform Commission of Canada. Federal Court: Judicial Review (Working Paper 18). Ottawa: Law Reform Commission, 1977.

De Smith, S. A. Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons Ltd., 1980.

Nelson, Bruce A. and Edward M. Opton and Thomas E. Wilson. "Wage Discrimination and the "Comparable Worth" Theory in Perspective" (1980), 13 U. Mich. J. L. Ref. 233.

Pépin, Gilles et Yves Ouellette. Principes de contentieux administratif, 2^e éd. Cowansville, Qué.: Éditions Yvon Blais Inc., 1982.

Tarnopolsky, Walter S. Discrimination and the Law in Canada, 2nd ed. Toronto: Richard De Boo Ltd., 1982.

APPEAL from a judgment of the Federal Court of Appeal (1986), 90 N.R. 16, 1986 6556 (FCA), 9 C.H.R.R. D/4922, 16 C.C.E.L. 275, dismissing appellant's application under s. 28 of the Federal Court Act to review and set aside a decision of the Canadian Human Rights Commission. Appeal dismissed, Wilson and L'Heureux‑Dubé JJ. dissenting.

Luc Martineau and Lyne Robichaud, for the appellant.

Russell G. Juriansz and Anne Trottier, for the respondent.

Gaspard Côté, Q.C., and Raymond Piché, for the mis en cause.

//The Chief Justice//

The following are the reasons delivered by

THE CHIEF JUSTICE -- I agree with the reasons of my colleague, Justice Sopinka with one reservation. In my view, this appeal can be entirely disposed of on jurisdictional and procedural grounds, and accordingly, I do not find it necessary or appropriate to deal with the correctness of the Canadian Human Rights Commission's interpretation of s. 11 of the Canadian Human Rights Act, S.C. 1976-77, c. 33. The Commission chose not to give reasons for its decision to dismiss the complaint as unsubstantiated. The focus of the appellant's attack before this Court was on procedural and jurisdictional grounds and in the Federal Court of Appeal, the interpretation of s. 11 was not addressed. Accordingly, I concur with Sopinka J. but express no view with respect to the interpretation of s. 11.

//Sopinka J.//

The judgment of Lamer, La Forest and Sopinka JJ. was delivered by

SOPINKA J. -- This appeal raises the question of the appropriate classification of the function of the Canadian Human Rights Commission when it dismisses a complaint of discrimination under s. 36(3) of the Canadian Human Rights Act, S.C. 1976-77, c. 33. The appropriate classification of this function is relevant to determine not only the jurisdiction of the Federal Court to review the determination of the Commission, but also whether the manner in which the Commission proceeded in arriving at its decision violated the appellant's rights to either natural justice or procedural fairness.

Facts

The appellant represents all of the production workers employed by the Canadian Broadcasting Corporation ("CBC") in the province of Quebec and in Moncton, New Brunswick. It filed a complaint with the Canadian Human Rights Commission (the "Commission") dated November 10, 1981 pursuant to the equal pay for work of equal value provisions of s. 11 of the Canadian Human Rights Act (the "Act"). The complaint alleged that employees in the "fabrication and manipulation des décors section" of the CBC, who were predominantly male, were paid more for work of equal value than employees in the "fabrication and manipulation des costumes section", who were predominantly female. The complaint further alleged that employees in the maquillage section were similarly underpaid in comparison to employees in certain male-dominated jobs of equal value.

Upon receipt of the complaint, pursuant to s. 35 of the Act, an investigator was appointed to investigate the matter and prepare a report.

The investigation of an equal pay complaint requires the application of generally accepted job evaluation techniques to measure the relative value of the jobs in issue. This process is a three-step procedure:

1.The investigator must gain a thorough understanding of the job content of each job. This information is obtained from up-to-date job descriptions or position specifications obtained from the employer, and when there is doubt, from the incumbents of the job who are asked to complete questionnaires. These are known as job fact sheets.

2.The jobs are then evaluated using a job evaluation plan. The plan will contain techniques used to measure job content according to factors and criteria specified in the plan. This permits a quantitative comparison of the relative value of jobs.

3.The quantitative measures of job value are then co-related to appropriate levels of compensation.

The CBC's existing classification levels were tested against classification levels identified by Commission experts using first the former CBC plan and then a Treasury Board plan which is called the Aiken Plan.

This process took approximately four years and from beginning to end the investigator was in constant touch with the appellant and the CBC. The investigator obtained the benefit of their comments from time to time.

Although some discrepancies were found by the investigator, they were not significant having regard to the overall consistency of the ratings. The investigator concluded that the existing salary disparities were as a result of job misclassification, noting that they were also present in comparisons between properly and improperly classified male employees rather than based on sex. Accordingly, he recommended that the complaint be rejected by the Commission as unsubstantiated.

Notwithstanding the fact that the parties had been kept abreast of the investigation during its progress, on October 16, 1984 the regional investigator, Michel Pitre, wrote to the appellant as follows:

[TRANSLATION] We therefore enclose a copy of the documents that will be submitted to the Commission for its use in arriving at a decision in this case. You are requested to send your submission to the Director, Complaints and Compliance (Canadian Human Rights Commission, 400, 90 Sparks Street, Ottawa K1A 1E1) within thirty calendar days of the date of receipt of this letter.

Enclosed with the letter was a copy of his report which explained the methodology, including references to the Aiken Plan, and the results of its application. Furthermore, the discrepancies referred to above were fully identified. Under the heading "Discussion", the investigator explained that in investigating the matter, it was necessary to consider the group rather than individual members and to examine the system rather than focussing on individual complaints. This is based on the Commission's interpretation of s. 11 of the Act. This interpretation is adopted because of the Commission's view that s. 11 is so worded as to prevent "ratcheting" and other wage adjustments that are not in accordance with good compensatory practice. For example, ten different male employees performing dissimilar work and being paid different salaries, nevertheless may all be performing work of equal value to a lesser paid female employee. If the female employee were entitled to limit a complaint under s. 11 to a comparison of her wages only to those of the highest paid male, her wages would be adjusted to be equal to those of the highest paid male. Thereafter all other males could require adjustment of their wages to be equal to those of the female who would then be receiving the highest wage rate. The result of such an approach would be that all employees would eventually move to the highest wage rate. Administered in this way, s. 11 would not be a guarantee of equal pay between sexes, but a guarantee of equal pay for work of equal value irrespective of sex.

The appellant was given thirty days to make written submissions to the Commission and was granted an extension of time to make these submissions. Extensive written submissions were made to the Commission. After considering these submissions and the report of the investigator, the Commission dismissed the complaint as unsubstantiated. The appellant was notified of this decision by letter dated June 27, 1985 which stated:

[TRANSLATION] The Canadian Human Rights Commission has considered the investigation report in your complaint against Radio-Canada, in which you alleged a difference in wages in employment due to sex.

The Commission has decided that the positions that were the subject of comparison were not of equal value and that the complaint was therefore groundless. Accordingly, the Commission has decided to dismiss your complaint. The Commission has noted the observations by you dated January 29, 1985.

Issues

1. Appropriate Classification of the Decision of the Commission

Is the decision of the Commission one that is required to be made on a judicial or quasi-judicial basis within the meaning of s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10?

2. Reviewable Error

If the answer is yes, did the Commission commit a reviewable error?

Legislation

Federal Court Act

18. The Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Canadian Human Rights Act

11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

(2) In assessing the value of work performed by employees employed in the same establishment the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.

(2.1) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be a single establishment.

(3) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 22(2), to be a reasonable factor that justifies the difference.

(4) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.

(5) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section.

(6) For the purposes of this section, "wages" means any form of remuneration payable for work performed by an individual and includes salaries, commissions, vacation pay, dismissal wages, bonuses, reasonable value for board, rent, housing, lodging, payments in kind, employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans and any other advantage received directly or indirectly from the individual's employer.

26. (1) Such officers and employees as are necessary for the proper conduct of the work of the Commission shall be appointed in accordance with the Public Service Employment Act.

(2) The Commission may, for specific projects, enter into contracts for the services of persons having technical or specialized knowledge of any matter relating to the work of the Commission to advise and assist the Commission in the exercise or performance of its powers, duties and functions under this Act, and such persons may be paid such remuneration and expenses as may be prescribed by by-law of the Commission.

32. (1) Subject to subsections (5) and (6), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.

33. Subject to section 32, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; or

(b) the complaint

(i) is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act,

(ii) is beyond the jurisdiction of the Commission,

(iii) is trivial, frivolous, vexatious or made in bad faith, or

(iv) is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

34. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.

35. (1) The Commission may designate a person (hereinafter referred to as an "investigator") to investigate a complaint.

(2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4) and the Commission may authorize an investigator,

(a) subject to such limitations as the Governor in Council may prescribe in the interests of national defence or security, at any reasonable time, to enter any premises other than a private dwelling place or any part of any premises that is designed to be used and is being used as a permanent or temporary private dwelling place, and carry out such inquiries as are reasonably necessary for the investigation of the complaint; and

(b) to require any individual found in any premises entered pursuant to paragraph (a) to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation of the complaint.

(3) No person shall obstruct an investigator in the investigation of a complaint.

(4) The Governor in Council may make regulations prescribing procedures to be followed by investigators and authorizing the manner in which complaints are to be investigated pursuant to this Part and prescribing limitations for the purpose of paragraph (2)(a).

36. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.

(2) If, on receipt of a report mentioned in subsection (1), the Commission is satisfied

(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or

(b) that the complaint could more appropriately be dealt with, initially or completely, by a procedure provided for under an Act of Parliament other than this Act,

it shall refer the complainant to the appropriate authority.

(3) On receipt of a report mentioned in subsection (1), the Commission

(a) may adopt the report if it is satisfied that the complaint to which the report relates has been substantiated and should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv); or

(b) shall dismiss the complaint to which the report relates if it is satisfied that the complaint has not been substantiated or should be dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv).

(4) After receipt of a report mentioned in subsection (1), the Commission

(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and

(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).

39. (1) The Commission may, at any stage after the filing of a complaint, appoint a Human Rights Tribunal (hereinafter in this Part referred to as a "Tribunal") to inquire into the complaint.

40. (1) A Tribunal shall, after due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the Tribunal, any other interested party, inquire into the complaint in respect of which it was appointed and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, of appearing before the Tribunal, presenting evidence and making representations to it.

(2) The Commission, in appearing before a Tribunal, presenting evidence and making representations to it, shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint being inquired into.

Judgment of the Federal Court of Appeal

Marceau J. delivered the judgment of the court: (1986), 90 N.R. 16. With respect to the issue of jurisdiction under s. 28 he stated (at pp. 21-22):

. . . this is a question which though it may raise difficulties of jurisdiction is more one of form than substance, in the sense that it concerns primarily a definition of terms the exact content of which has in recent years become increasingly fluid as well as less important, and that there is nothing to be gained by a formal analysis of it, at least not in the case at bar.

Marceau J. disagreed with the premise put forward by the appellant that elaborate procedural requirements apply in the Commission proceedings, the final stage of which was a public and formal hearing. His view of the content of the procedural requirements was as follows (at p. 21):

What is required is for the complainant and all the parties concerned to have been fully informed of the substance of the evidence obtained by the investigator and the content of his report and to have had an opportunity to make, verbally or in writing, all the relevant representations they wished to make.

With respect to the complaints about the proceedings of the Commission, Marceau J. enumerated them as follows:

1.The Commission relied solely on the investigation report without examining the underlying evidence, in particular the expert evidence;

2.It failed to hold a public hearing or failed to require the investigator to hold a public hearing;

3.It failed to give written reasons;

4.The investigator's conclusions were not only his own but also those of the experts;

5.It did not give the appellant access to all matters contained in the record, namely spot check reports and check sheets.

Marceau J. concluded that some of these complaints proceeded from a misconception of the relative function of the Commission and the investigator. The Commission was entitled to retain the assistance of experts and to rely on the report of the investigator so long as it considered the representation of the parties and came to its own conclusion. With respect to other complaints, they were based on the view of the appellant that a formal hearing was required. Finally, Marceau J. concluded that the spot check reports and check sheets were simply confirmatory of the facts in other documents and had only a very incidental or comparatively insignificant function. Marceau J. concluded that the appellant was adequately informed of the substance of the evidence obtained by the investigator. The appellant had therefore failed to show that the decision was unlawful.

1. Appropriate Classification of the Decision of the Commission

The Attorney General of Canada submitted that the Federal Court of Appeal lacked jurisdiction to review the decision of the Commission under s. 28 of the Federal Court Act in that it was not a decision or order required by law to be made on a judicial or quasi-judicial basis. As pointed out above, Marceau J., in the Federal Court of Appeal, saw no purpose in answering this question since he concluded that no reviewable error had been committed. Much judicial energy has been expended in deciding the limits of s. 28, and while it is a daunting task, we are urged by the Attorney General to deal with this point and to dismiss the appeal on this ground.

The application of s. 28 and its companion s. 18 has been rendered difficult by reason of the fact that the clear-cut distinction between certain types of tribunals which existed when the Act was passed no longer exists. As a result of Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311, many tribunals exercising so-called administrative or executive functions are required to comply to a limited extent with the audi alteram partem rule which is labelled as the duty to accord procedural fairness. Formerly, tribunals that were required to comply with the rules of natural justice were characterized as judicial or quasi-judicial tribunals. This classification along procedural lines was expressed by Megarry J. in Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (Ch. D.), at p. 1378, as follows:

. . . that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness.

This statement was adopted by Laskin C.J. in Nicholson, supra, at p. 324. Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates. In Martineau v. Matsqui Institution Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602, at p. 629, Dickson J. (as he then was) stated:

In general, courts ought not to seek to distinguish between the two concepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework.

The Federal Court Act, however, compels classification for review of federal boards, commissions or other tribunals. Accordingly, the distinction referred to by Megarry J. and adopted by this Court in Nicholson, supra, must continue to serve as the basis for distinguishing between s. 28 and s. 18. In Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177, Wilson J., writing for herself, the Chief Justice and Lamer J., applied this distinction in holding that the Minister's determination under s. 45 of the Immigration Act, 1976 was not reviewable under s. 28. Wilson J. stated, at p. 197:

Thus, despite Nicholson's tendency to eliminate the significance of the distinction between administrative and judicial or quasi-judicial functions for purposes of determining whether procedural fairness in decision-making is required, the Federal Court Act preserves the significance of the distinction for purposes of determining whether judicial review is available by means of certiorari under s. 18(a) or by way of review under s. 28: see Martineau, supra, at pp. 629 and 637. Since the appellants did not challenge the procedural fairness of the Minister's decision under s. 45 of the Immigration Act, 1976 by the proper procedures, I do not believe that the Court has any jurisdiction on these appeals to review those decisions or the mechanisms by which they were taken . . . .

Similarly, in Martineau v. Matsqui Institution Disciplinary Board, supra, this Court held that disciplinary proceedings respecting a prison inmate did not have to meet the full requirements of natural justice but that the tribunal owed a duty of fairness to the inmate which could be reviewed under s. 18 of the Federal Court Act.

It is therefore necessary to examine the nature of the proceedings before the Commission in order to determine whether it was required to comply with the full panoply of the rules of natural justice or was required rather to accord procedural fairness to the appellant.

The Canadian Human Rights Act was enacted after human rights legislation had been adopted in all of the provinces. Indeed, for example, a comprehensive human rights code was adopted in Ontario in 1962 and in Nova Scotia in 1963. See Tarnopolsky, Discrimination and the Law in Canada (1982), at pp. 30-31. The drafters of the Act were obviously influenced by these provincial codes and many of the provisions of the Act are similar to the provincial legislation. The procedure set out in the Act reflects the influence of the form of earlier provincial statutes and the experience of the provincial commissions.

By virtue of s. 32 of the Act an individual, or group of individuals, "having reasonable grounds for believing that a person is engaging . . . in a discriminatory practice", may initiate a complaint with the Commission. Section 33 provides that the Commission is to deal with the complaint unless it is disposed of on one of the grounds set out in this section. These include failure to exhaust other remedies which ought to have been resorted to, lack of jurisdiction in the Commission, that the complaint is trivial, frivolous, vexatious or made in bad faith or is out of time. If the Commission does not act under s. 33, there are only two ways of dealing with the complaint. One is to appoint an investigator under s. 35 to investigate the complaint and the other is to appoint a tribunal under s. 39. If the Commission adopts the former course of action, the complaint enters the investigative stage. Sections 35 and 36 appear under the heading "Investigation". There is no other provision in the Act for investigating the complaint other than the appointment of an investigator. Under some provincial codes, the Commission is specifically authorized to investigate the complaint in which case it may be done by the Commission staff itself or in some cases by the appointment of an investigator. See the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, s. 32, and the Alberta Individual's Rights Protection Act, R.S.A. 1980, c. I-2, s. 20. In general, complainants look to the Commission to lead evidence before a tribunal appointed under s. 39, and therefore investigation of the complaint is essential if the Commission is to carry out this role. Section 40(2) reflects this fact in the life of the Commission.

The investigator, in conducting the investigation, does so as an extension of the Commission. I do not regard the investigator as someone independent of the Commission who will then present evidence as a witness before the Commission. Rather the investigator prepares a report for the Commission. This is merely an example of the principle that applies to administrative tribunals, that they do not have to do all the work themselves but may delegate some of it to others. Although s. 36 does not require that a copy of the report be submitted to the parties, that was done in this case.

Section 36(3) provides for two alternative courses of action upon receipt of the report. The Commission may either adopt the report "if it is satisfied" that the complaint has been substantiated, or it may dismiss the complaint if "it is satisfied that the complaint has not been substantiated". If the report is adopted, I presume that it is intended that a tribunal will be appointed under s. 39 unless the complaint is resolved by settlement. I come to this conclusion because otherwise there is no provision for any relief to the complainant consequent on adoption of the report. This aspect of the Commission's procedure has been clarified by amendments to the Act (S.C. 1985, c. 26, s. 69). The current version of s. 36(3) is contained in s. 44(3) of the R.S.C., 1985, c. H-6 (as amended by c. 31 (1st Supp.), s. 64) and now provides that, upon receipt of the report of the investigator, the Commission may request the appointment of a tribunal if it is satisfied that, having regard to all the circumstances, an inquiry into the complaint is warranted.

The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. In this regard, I adopt the statement of Lord Denning, M.R., in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), quoted hereunder. The Race Relations Board was charged with duties similar to those of the Canadian Human Rights Commission. In determining that it was an investigatory body with the duty to act fairly, Lord Denning said, at p. 19:

In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . . . In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.

A similar conclusion was reached by the Ontario Divisional Court in Re Dagg and Ontario Human Rights Commission (1979), 1979 1671 (ON SC), 102 D.L.R. (3d) 155. The Ontario Human Rights Commission was required to make a recommendation to the Minister as to whether or not a board of inquiry should be appointed. The Commission recommended against the appointment of a board of inquiry after determining that the complainant's complaint of discrimination on the basis of sex was not substantiated. The applicant alleged that both the Commission and the Minister, in following the Commission's recommendation, were exercising a judicial function. The Divisional Court held that both were exercising administrative functions not subject to the requirements of natural justice. Under the Canadian Human Rights Act, although both functions are exercised by the Commission, that does not alter their administrative nature.

In Radulesco v. Canadian Human Rights Commission, 1984 120 (SCC), [1984] 2 S.C.R. 407, the Commission conceded that it was required to act on a quasi-judicial basis when it decided to dismiss a complaint as unsubstantiated under s. 36(3)(b). The Commission also acknowledged that procedural fairness required that the complainant be provided with an opportunity to make submissions, at least in writing, before any action was taken on the basis of the report and that, in order that such submissions could be made on an informed basis, it was required to disclose the substance of the case to the party prior to its decision. The Commission denied, however, that a hearing was necessarily required. Lamer J. stated (at p. 410):

Without pronouncing upon all aspects of the standard of conduct the Commission must meet, I agree that the standard enunciated by the respondent is one which must, in all cases, be met.

Radulesco was therefore not a case in which the availability of review under s. 28 of the Federal Court Act was in issue. In any event, the standard of conduct required of the Commission in Radulesco was one consistent with the requirements of procedural fairness rather than those of natural justice.

In Cashin v. Canadian Broadcasting Corp., 1984 5375 (FCA), [1984] 2 F.C. 209, the Federal Court of Appeal was faced with the question of whether the Commission's decision not to appoint a tribunal to hear a complaint alleging discrimination on the basis of sex and marital status should be set aside. The Federal Court of Appeal decided to set aside the decision on the basis that the requirements of natural justice had not been met. Without commenting on the substance of the Court of Appeal's reasons, I would merely note that, as observed by Mahoney J. at p. 213, the availability of s. 28 review was not disputed.

Re Downing and Graydon (1978), 1978 1424 (ON CA), 92 D.L.R. (3d) 355 dealt with the Ontario Employment Standards Act, S.O. 1974, c. 112. The majority judgment of Blair J.A., with concurring reasons by Wilson J.A. (as she then was), found that, although a formal hearing was not required, the employment standards officer had failed to bring to the attention of the complainant adverse information that was pertinent to enable the complainant to reply. Although the judgment of Blair J.A. refers to judicial proceedings, the obligation imposed on the officer was merely a duty of fairness. The distinction between the duty to act judicially and the duty of fairness was not one that was crucial to the case and of course was not made for the purpose of determining whether s. 28 of the Federal Court Act applied.

Accordingly, I agree with the submissions of the Attorney General of Canada that the Federal Court of Appeal had no jurisdiction to hear this application on the ground that the decision of the Commission was not one that was required to be made on a judicial or quasi-judicial basis.

2. Reviewable Error

Although it is not, strictly speaking, necessary to decide this issue in view of the conclusion reached above, the matter was dealt with extensively in the Court of Appeal and was fully argued here. It is therefore appropriate to observe that had I determined that the decision of the Commission was reviewable, I would have concluded as Marceau J. did that the Commission committed no reviewable error. I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto.

The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. All this was done.

Two matters require special comment. First, it is submitted that failure to give reasons is itself a basis for review. Assuming without deciding that this is so in the absence of a statutory requirement to give reasons (compare Northwestern Utilities Ltd. v. City of Edmonton, 1978 17 (SCC), [1979] 1 S.C.R. 684, at p. 706, and Lamer J. in Blanchard v. Control Data Canada Ltd., 1984 27 (SCC), [1984] 2 S.C.R. 476, at pp. 500-501), in my opinion there is no basis for such review in this case. The appellant was notified that the Commission had decided that the positions which were the subject of comparison did not constitute work of equal value. The basis for this conclusion was the very extensive report of the investigator which the Commission adopted. This, the Commission was entitled by statute to do. The report which it adopted was in the hands of the appellant. Accordingly, the latter was fully apprised of the reasons for the Commission's decision. There is, therefore, no ground for suggesting that there was any denial of natural justice or procedural fairness in this regard.

The appellant submitted, apparently for the first time in this Court, that it was not apprised of the Commission's interpretation of s. 11 of the Act. While I agree with Wilson J.'s statement in Re Downing and Graydon, supra, that this is an aspect of the duty of procedural fairness to inform a party of the case to be met, I am satisfied that the appellant was expressly advised of the manner in which s. 11 was being applied by the Commission. Indeed, in the appellant's response a separate section entitled "L'Application de la loi" is devoted to this matter. Furthermore, I am satisfied that the Commission correctly applied s. 11 to the facts of this case. The intention of s. 11 is to prohibit discrimination by an employer between "male and female employees" who perform work of equal value and not to guarantee to individual employees equal pay for work of equal value irrespective of sex.

In the result, the appeal is dismissed with costs.

//L'Heureux-Dubé J.//

The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by

L'HEUREUX-DUBÉ J. (dissenting) -- I must respectfully come to a different conclusion from that reached by my colleague Sopinka J. as regards the nature of the process which the Canadian Human Rights Commission is required to follow in dismissing a complaint pursuant to s. 36(3)(b) of the Canadian Human Rights Act, S.C. 1976-77, c. 33. Such a decision is in my view "required by law" to be made on a quasi-judicial basis and is accordingly reviewable by the Federal Court of Appeal under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. Moreover, I cannot subscribe to my colleague's conclusion that the Commission committed no reviewable error in the present case. The equal pay provisions of the Canadian Human Rights Act and the Equal Wages Guidelines, SI/78-155, constitute a complex legal standard which may be interpreted in a variety of ways. I am of the view that the Commission was under a duty to disclose not only the factual basis of its decision but the legal basis as well before reaching a conclusion on the complaint filed by appellant. The Commission's failure to do so amounted in my opinion to a breach of the rules of natural justice and, upon review, its decision must accordingly be set aside. I will now deal with these two propositions in greater detail.

I - Is the Decision Under s. 36(3) Required to be Made Judicially?

In light of this Court's judgments since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311, the importance once enjoyed by the distinction between "administrative" and "quasi-judicial" decisions has faded away. For instance, under the common law, that distinction no longer determines when judicial review can be obtained. As Laskin C.J., writing for the Court, remarked in Employment and Immigration Commission v. MacDonald Tobacco Inc., 1981 183 (SCC), [1981] 1 S.C.R. 401, at p. 407:

In my view, it is no longer sensible to retain the old stereotyped classifications of statutory authority as being either administrative or judicial (or quasi-judicial) as providing a basis for review by the courts in the latter case but not in the former. It is more compatible with substance to look at statutory tribunals or boards or authorities in terms of the functions which, either at large or in a particular situation, they are obliged to discharge.

The same cannot be said, however, for judicial review under s. 28 of the Federal Court Act. Courts cannot avoid characterizing processes as either administrative or quasi-judicial when dealing with the review jurisdiction of the Federal Court of Appeal. This is so because Parliament maintained the distinction in s. 28:

28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal . . . commission . . . upon the ground that the . . . commission . . .

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [Emphasis added.]

That provision preserves the significance of the distinction between judicial and administrative decisions for the limited purpose of determining whether judicial review is available by way of application to the Federal Court of Appeal (see Singh v. Minister of Employment and Immigration, 1985 65 (SCC), [1985] 1 S.C.R. 177, at p. 197, per Wilson J.)

Section 28 has been the object of harsh criticism. This Court once referred to the wording of s. 28 as "convoluted language" which "has presented many difficulties" (Minister of National Revenue v. Coopers and Lybrand, 1978 13 (SCC), [1979] 1 S.C.R. 495, at p. 499). The distinction preserved by s. 28 has been called "notoriously unclear" and criticized as "depend[ing] on inarticulated criteria" and "reduc[ing] the rational element in law" (Law Reform Commission of Canada, Working Paper 18, Federal Court: Judicial Review (1977), at pp. 35-36). Professors Gilles Pépin and Yves Ouellette describe this field of administrative law as being [TRANSLATION] "characterized by juridical impressionism" (Principes de contentieux administratif (2nd ed. 1982), at p. 144). In Nicholson, supra, Laskin C.J. stated "that the classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult, to say the least" (p. 325).

The difficulty inherent to the classification may underlie in part the apparent hesitation of the Federal Court of Appeal in the case at bar in deciding the jurisdictional issue, even though that issue had been argued before it. Referring to s. 28, Marceau J., who delivered the judgment of the court, explained ((1986) 90 N.R. 16, at pp. 21-22):

. . . we feel that this is a question which though it may raise difficulties of jurisdiction is more one of form than substance, in the sense that it concerns primarily a definition of terms the exact content of which has in recent years become increasingly fluid as well as less important, and that there is nothing to be gained by a formal analysis of it, at least not in the case at bar.

In other recent cases the Federal Court of Appeal also refrained from dealing with the same jurisdictional issue and simply proceeded on the basis that it had jurisdiction to review a decision made by the Commission pursuant to s. 36(3): see Brouillette v. Canadian Human Rights Commission (1986), 86 N.R. 393; Labelle v. Canada (Treasury Board) (1987), 76 N.R. 222 and Whiteman v. Canada (Canadian Human Rights Commission) (1987), 1987 8582 (FCA), 9 C.H.R.R. D/4944.

Difficult as the task may be, it is nonetheless a condition precedent to the finding of jurisdiction in the Federal Court of Appeal under s. 28 of the Federal Court Act. In order to identify whether a function is truly judicial or quasi-judicial in that context, a number of useful criteria have developed in the law. Professors Pépin and Ouellette, who observe that courts have adopted a pragmatic approach in this area, discuss many of these criteria. These are (op. cit., at pp. 154-76): (1) the organic criterion, that is, whether the decision is made by a court of justice or by an executive body; (2) the firm decision criterion, that is, whether the tribunal is empowered to make a binding and enforceable decision, as opposed to simply advising or making a recommendation; (3) the criterion of the basis for the decision, that is, whether the tribunal applies a pre-existing rule to a disputed set of facts, as opposed to making new policy in each case; (4) the consequences of the decision criterion, namely, whether the decision affects individual rights or interests; (5) the judicial process criterion, that is, whether the tribunal has been endowed with the usual characteristics of the adversarial process; and (6) considerations of public policy as discerned in the objectives served by the enabling statute. Referring to these criteria, this Court commented in Attorney General of Quebec v. Udeco Inc., 1984 122 (SCC), [1984] 2 S.C.R. 502, at p. 511:

The case law . . . contains a number of criteria by which a given power may be classified. These criteria are grouped by G. Pépin and Y. Ouellette, in Principes de contentieux administratif, 2nd ed., 1982, under the following headings: the organic criterion; the criterion of the firm decision; the criterion of the basis for the decision; the criterion of the decision affecting rights; the criterion of the judicial process; and considerations of public policy.

This is not to say that a power must be examined in each case in light of each of the given criteria in order to determine its nature; but that, depending on the circumstances, one or more of these criteria should be used in arriving at a conclusion. [Emphasis added.]

I agree that in determining whether a decision is required by law to be made judicially there is no inflexible approach to which the courts must adhere. No single element is by itself determinative; it is the combination of a number of the relevant characteristics which classifies the decision in each particular case. Discussing these characteristics in Minister of National Revenue v. Coopers and Lybrand, supra, Dickson J. (as he then was), delivering the opinion of the Court, stated (at p. 504):

It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?

These four criteria are relied upon by Professors Pépin and Ouellette in their discussion of what they label the criterion of the firm decision, the basis of the decision criterion, the consequences of the decision criterion and the criterion of the judicial process. Commenting on the role played by each of these elements, Dickson J. added (at pp. 504-5):

These are all factors to be weighed and evaluated, no one of which is necessarily determinative. Thus, as to (1), the absence of express language mandating a hearing does not necessarily preclude a duty to afford a hearing at common law. As to (2), the nature and severity of the manner, if any, in which individual rights are affected, and whether or not the decision or order is final, will be important, but the fact that rights are affected does not necessarily carry with it an obligation to act judicially.

The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating those of a court add weight to (3). But, again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially. [Emphasis added.]

The firm decision criterion and the criterion of the basis for the decision have been long-standing indications of the judicial nature of decisions. In Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., 1948 266 (UK JCPC), [1949] A.C. 134, at p. 149, the Judicial Committee of the Privy Council remarked:

It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties . . . and that it is the duty of the court to decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings.

The conclusive adjudication of a point of law which is disputed by opposing parties is quintessentially judicial. In Udeco Inc., supra, this Court held that the power to suspend the board of directors of a corporation and to substitute another for it based on reasons of public interest in securities trading was not a judicial power. A major element in the reasoning of this Court was the absence of any true lis between the parties (see the discussion at pp. 511-13 and at p. 517).

The criteria discussed by Pépin and Ouellette reiterate to some extent those which are proposed by Professor Stanley A. de Smith to characterize the judicial function. The first is whether "the performance of the function terminates in an order that has conclusive effect" (Judicial Review of Administrative Action (4th ed. 1980), at p. 81). This criterion excludes from the judicial sphere bodies exercising mere advisory, investigatory or conciliatory powers and corresponds to the firm decision criterion. The second is whether "a body has been endowed with many of the "trappings of a court"" (p. 82), although that is expressly stated not to be a conclusive factor. This element relates to Pépin and Ouellette's judicial process criterion. Third, according to Professor de Smith, is whether the body is called upon to interpret and declare how the law stands between two opposed parties (at p. 85):

A typical lis inter partes culminates in a decision by a tribunal resolving any disputed questions of law or fact; the legal issues are determined by reference to principles and rules already in being. A tribunal or other deciding body is therefore likely to be held to be acting in a judicial capacity when, after investigation and deliberation, it determines an issue conclusively by the application of a pre-existing legal rule or another objective legal standard to the facts found by it. That interpreting, declaring and applying the law are characteristic hallmarks of the judicial function is too elementary a proposition to call for authoritative support. [Emphasis added.]

This third element coincides with the criterion of the basis for the decision. There is much overlap in the doctrinal analyses of the classification of decisions, although not all authors use similar language to define the relevant criteria. For the purpose of discussion, I will group under a single heading the criteria which Pépin and Ouellette refer to as the firm decision criterion, the criterion of the basis for the decision and the judicial process criterion. These elements share the common feature of being concerned with the formal characteristics of the process by which the decision is reached. I will then turn to the consequences of the decision criterion, which focuses not on the formal aspects but rather on the material characteristics of the decision. Finally, I will review the statutory context and examine the policy considerations which the statute raises.

1. Formal Characteristics

The Canadian Human Rights Act allows the Commission to dispose of complaints on grounds which are entirely extraneous to the merits of a complaint. For instance, s. 32(5) imposes certain conditions in order for a complaint to be considered. Similarly, ss. 33(b)(ii) to (iv) exclude frivolous and time-barred complaints, and those complaints for which the Commission has no jurisdiction:

33. Subject to section 32, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

(b) the complaint

(ii) is beyond the jurisdiction of the Commission,

(iii) is trivial, frivolous, vexatious or made in bad faith, or

(iv) is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

The Act further excludes complaints which may be more appropriately dealt with by grievance or other procedures reasonably available to the complainant (s. 36(2)) as well as complaints relating to pension funds or insurance plans (s. 65).

The combined effect of these provisions is to enable the Commission to sift through the complaints and remove a number of them from the time-consuming process of investigation. The power to bar certain complaints from proceeding any further regardless of their merit reflects Parliament's overriding commitment to considerations of administrative efficiency and to specific policy objectives.

As it stood at the relevant time, the Act also allowed the Commission to dismiss a complaint which it believed was "unsubstantiated". Section 36 then stated:

36. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.

(2) If, on receipt of a report mentioned in subsection (1), the Commission is satisfied

(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or

(b) that the complaint could more appropriately be dealt with, initially or completely, by a procedure provided for under an Act of Parliament other than this Act,

it shall refer the complainant to the appropriate authority.

(3) On receipt of a report mentioned in subsection (1), the Commission

(a) may adopt the report if it is satisfied that the complaint to which the report relates has been substantiated and should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in subparagraph 33(b)(ii) to (iv); or

(b) shall dismiss the complaint to which the report relates if it is satisfied that the complaint has not been substantiated or should be dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv).

(4) After receipt of a report mentioned in subsection (1), the Commission

(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and

(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3). [Emphasis added.]

In s. 41, Parliament also empowered a Human Rights Tribunal to decide whether or not a complaint is substantiated:

41. (1) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is not substantiated, it shall dismiss the complaint.

(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 . . . . [Emphasis added.]

In MacBain v. Lederman, 1985 5548 (FCA), [1985] 1 F.C. 856, the Federal Court of Appeal noted the similarity between the powers of the Commission, under s. 36(3), and those of a Tribunal, under s. 41 (at p. 872):

. . . in my view, Mr. Justice Collier was correct in concluding that "substantiate" has the same meaning in subsection 36(3) as it does in subsection 41(1). I so conclude because, in my view, since the word is used in two sections of the Act, both of which form part of the same procedure for the disposition of complaints, it should be presumed initially that the same word should have the same meaning.

The Court held that the word "substantiated" is to be interpreted as meaning "proven" in both ss. 36(3) and 41. This followed, in the Court's view, from the clear meaning of the word "substantiate", with which the Court was not at liberty to interfere (p. 873). I agree with this view.

In the present case, the Commission's aim from the start of the investigation was to determine whether the complaint alleging discrimination was actually made out. The main issue was whether the work performed in the Section fabrication et manipulation des costumes ("Section costumes") and Section fabrication et manipulation des décors ("Section décors") was of "equal value" within the scope of s. 11 of the Act. In an interim internal memorandum dated August 13, 1984, the Director of Complaints, commenting on the investigator's report, criticised the fact that the report failed to disclose the evidence from which it could be concluded that s. 11 of the Act had not been breached:

[TRANSLATION] In his report the investigator gives a very general picture of the procedure followed to determine whether there had in fact been discrimination under s. 11 of the Act. The investigator gives us his assessment of the outcome of this procedure. However, what the report does not give us is the very essence of what an investigation report should be, namely a review of the evidence presented on which findings as to the merits of the complaint can be based.

The formal decision of the Commission confirms that the focus of the Commission's investigation was to determine whether there was good ground in law for the complaint. That decision states:

[TRANSLATION] The Commission has decided that the positions that were the subject of comparison were not of equal value and that the complaint was therefore groundless. Accordingly, the Commission has decided to dismiss your complaint.

There is no doubt that the determination of whether work is of "equal value" within the meaning of s. 11(1) of the Act is a question of law. In the typical situation the complainant will allege that the work being performed by her is of equal value to the work being performed by her employer's male employees. The employer will allege that the work being performed by her is not of equal value but is of lesser value. The function of the Commission under s. 36(3) is to decide whether the complaint of discrimination is substantiated or not, given the findings set out in the investigator's report.

The function performed by the Commission under s. 36(3) is accordingly closely akin to the adjudicative function performed by the ordinary courts. The Commission conclusively interprets and applies a legal norm between two parties in an adversarial position. It makes a decision "required by law to be made on a judicial or quasi-judicial basis" within the meaning of s. 28(1) of the Federal Court Act.

2. Consequences of the Decision on Individual Rights

The Act as a whole promotes the goal of equal opportunity. It seeks to attain this objective by prohibiting discriminatory practices and creating statutory remedies in favour of victims of adverse discrimination. The legislative scheme in effect creates enforceable rights to be free from discrimination. As noted by Dickson C.J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114, at p. 1134:

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.

Because of their fundamental importance, these rights to be free from discriminatory practices have been said to have an ""almost constitutional" nature" (see Robichaud v. Canada (Treasury Board), 1987 73 (SCC), [1987] 2 S.C.R. 84, at p. 92).

In Latif v. Canadian Human Rights Commission, 1979 4045 (FCA), [1980] 1 F.C. 687, the Federal Court of Appeal held that a decision to dismiss a complaint pursuant to s. 33 of the Act is required to be made on a quasi-judicial basis. A major element in the Court's reasoning was the importance of the decision on the rights of the complainant. Le Dain J., who delivered the judgment of the Court, said (at p. 697):

There can be little doubt that the Canadian Human Rights Act creates new rights of a substantive and procedural nature. In effect it creates the right to be dealt with free from discrimination of certain kinds in respect of certain matters within federal legislative jurisdiction, and it provides special machinery for obtaining relief from discriminatory practices. A decision not to deal with a complaint on a ground specified in section 33 is a decision which effectively denies the possibility of obtaining such relief. It is in a real sense determinative of rights. [Emphasis added.]

I find this reasoning compelling and all the more so in the context of the dismissal of a complaint pursuant to s. 36(3). From the point of view of the complainant, no disposition of a complaint is more determinative of that person's rights than a finding that the complaint has no merit. Such a finding, though made by the Commission, has the same effect on the complainant as a decision by a Tribunal to dismiss the complaint as unsubstantiated pursuant to s. 41 of the Act: it constitutes a conclusive determination that the complainant's right to equal pay for work of equal value has not been infringed and that the complainant is not entitled to any of the remedial measures created by the Act to eliminate adverse discrimination.

In my view, the importance of this direct consequence of a decision under s. 36(3), especially in light of the fundamental nature of the underlying rights, favours a finding that that decision is required to be made quasi-judicially.

3. Statutory Context

The Act contains no express requirement of a hearing prior to the dismissal of a claim on the ground that it is unsubstantiated. However, the absence of such an express requirement does not end the enquiry. As noted in Minister of National Revenue v. Coopers and Lybrand, supra, at p. 503, "silence in this respect is not conclusive".

Section 36(4) of the Act requires the Commission to notify "the complainant and the person against whom the complaint was made of its action under subsection . . . (3)". This notice requirement is in my view not satisfied by simply informing a posteriori the person concerned of the action that was taken by the Commission. Rather, the wording of s. 36(4) demands that the notice be given before any decision is made by the Commission. Such a requirement of prior notice is a traditional indication of the common law duty to grant a hearing. In Latif v. Canadian Human Rights Commission, supra, Le Dain J. contemplated this common law duty when he wrote (at p. 699):

Finally, the requirement in section 34 that the Commission give written notice of the reason for its decision is not inconsistent with a duty to offer the complainant an opportunity to be heard. If anything, it serves to emphasize the judicial or quasi-judicial nature of the decision. It reinforces the impression that the decision is to be based on specific statutory criteria to which the party affected should have an opportunity to address himself. [Emphasis added.]

In addition, as discussed earlier, the test of "substantiation" is used both in s. 36(3), in respect of a determination by the Commission, and in s. 41, in the context of a Tribunal. Under s. 40(1), a Tribunal is under the express duty to hear the parties before coming to its conclusion on the merits of a complaint. The decision of the Tribunal has all the attributes of a decision required to be made on a judicial basis. Moreover, the Act expressly confers onto the Tribunal the powers to administer oaths, summon witnesses and receive evidence. Where a determination of the merits of a complaint involves testimonial evidence, it is beyond question that the Tribunal is better suited than the Commission to adjudicate the complaint.

In my view, Parliament could not have intended, in using the test of "substantiation" in s. 36(3), to allow the Commission to perform the exact same function as the Tribunal while at the same time to bypass the procedural safeguards established for the benefit of the complainant and the other parties concerned in a hearing before the Tribunal. Rather, the Act proposes the option of transferring complaints to the Tribunal. Section 39(1) states:

39. (1) The Commission may, at any stage after the filing of a complaint, appoint a Human Rights Tribunal (hereinafter in this Part referred to as a "Tribunal") to inquire into the complaint.

While s. 39(1) does not require the Commission to send every complaint to a Tribunal, such a course of action most certainly constitutes an alternative to adjudicating on the merits on the basis of the investigator's report. If the Commission chooses to itself adjudicate a complaint on the merits, it must then avoid proceeding in a way which would deprive the complainant of the procedural safeguards which would have been available before a Tribunal. In Cashin v. Canadian Broadcasting Corp., 1984 5375 (FCA), [1984] 2 F.C. 209 (C.A.), Mahoney J. (Heald J. concurring) commented upon the complementary role of the Commission and a Tribunal (at p. 215):

Perhaps the Commission can devise a way of achieving what must be done in the processing of this complaint within the limitations of its investigative process. If not, it does have another procedure available which would appear designed for such a case. [Emphasis added.]

In conclusion on this point, though they do not expressly require a hearing before a decision under s. 36(3), the provisions of the Act are in my view consistent with the imposition of a duty to proceed on a quasi-judicial basis.

The existence of such a duty finds ample support in the case law.

4. The Authorities

In addition to Latif v. Canadian Human Rights Commission, other judgments of the Federal Court of Appeal support the appellant's contention that a decision under s. 36(3) is required to be made on a quasi-judicial basis. In Cashin v. Canadian Broadcasting Corp., supra, a complaint was made alleging that the employer's decision not to renew the complainant's contract constituted discrimination on the basis of sex and marital status. The Commission launched an investigation into the matter and determined that the employer's decision not to renew the complainant's employment contract was based in a bona fide occupational requirement as provided for in s. 14 of the Act. On an application pursuant to s. 28 of the Federal Court Act, the Court of Appeal found that the investigator had failed to properly give the complainant the opportunity to controvert the evidence against her. The application was allowed. In Thurlow C.J.'s opinion, Heald J. concurring, the Commission's decision was required by law to be made on a judicial basis (at p. 211):

With respect to this issue the function of the Commission was in my view neither administrative nor quasi-judicial. It was a purely judicial function . . . .

Mahoney J. (Heald J. also concurring) made no finding respecting the nature of the function exercised by the Commission, but it can be inferred from the fact that he allowed the application that he did believe the Court had jurisdiction under s. 28 of the Federal Court Act.

In MacBain v. Lederman, supra, Cashin v. Canadian Broadcasting Corp. was discussed in a footnote indicating confirmation of the judicial nature of the process (at p. 862):

This Court has held that the Commission is acting in a judicial capacity when making such a determination [i.e., whether a claim is substantiated pursuant to s. 36(3)].

This question was raised before this Court in Radulesco v. Canadian Human Rights Commission, 1984 120 (SCC), [1984] 2 S.C.R. 407. We allowed an appeal from a judgment of the Federal Court of Appeal rejecting an application for judicial review of a decision of the Commission to dismiss a claim as unsubstantiated pursuant to s. 36(3). Our judgment records the following admission made by the Commission at the hearing (at p. 410):

Respondent Commission acknowledges that it must act on a quasi-judicial basis when it decides to dismiss a complaint as unsubstantiated under s. 36(3)(b) of the Canadian Human Rights Act.

No party to that appeal took a contrary position, and as the jurisdictional question was not raised, we allowed the appeal. This of course would not have been possible had the Federal Court lacked jurisdiction to hear the application for judicial review in the first place. The Federal Court is a court of general statutory jurisdiction: it is not empowered to hear an application which by virtue of its nature properly belongs in the Trial Division. Accordingly, our decision in Radulesco v. Canadian Human Rights Commission is implicitly premised on the quasi-judicial nature of the decision under s. 36(3).

I find it important to emphasize that, in the present appeal, the Commission made no submission in response to the Attorney General's contention that the Federal Court of Appeal lacks jurisdiction. At the hearing, the Commission attempted to make submissions on the merits of the application and was quite properly prevented from doing so by the Court. While it does not positively affirm the jurisdiction of the Federal Court under s. 28 of the Federal Court Act, the Commission, in adopting such a position, at least implicitly concedes the Court of Appeal's jurisdiction, as it had previously done in Radulesco v. Canadian Human Rights Commission, supra. This also appears to have been the position adopted by the Commission in the recent decisions of Brouillette v. Canadian Human Rights Commission, Labelle v. Canada (Treasury Board) and Whiteman v. Canada (Canadian Human Rights Commission), supra. Being a court of general statutory jurisdiction, the failure of the Federal Court of Appeal to raise the jurisdictional issue, in these cases as well as in the case at bar, suggests that, as a matter of judicial policy, a determination made pursuant to s. 36(3)(b) of the Canadian Human Right Act is required to be made in a judicial or quasi-judicial manner. In my view that policy is firmly rooted in law. A decision by the Commission to dismiss a complaint as unsubstantiated, pursuant to s. 36(3) of the Canadian Human Rights Act, is a conclusive determination in respect of fundamentally important individual rights which is made in an adversarial context and involves the application of a pre-existing legal standard to a disputed set of facts. In these circumstances, having regard to the terms of the Act which, though silent, are nevertheless consistent with the procedural safeguards of the quasi-judicial sphere, the Commission's decision can in my view be the subject of an application for review taken pursuant to s. 28 of the Federal Court Act.

Before concluding on this point, I note that subsequent to the decision of the Federal Court of Appeal in MacBain v. Lederman, important changes were brought to the wording of s. 36(3). In McBain, the Court had rejected the Commission's argument that "substantiated" did not mean "proven" on the ground that, had Parliament intended to mean something other than the clear meaning of that word, it would have done so. The Court remarked (at p. 873):

In order to give effect to this submission [i.e., the Commission's submission], it would be necessary to read paragraph 36(3)(a) of the Act as though the word "substantiated" was deleted and the following word or words of like import were substituted therefor: "that an inquiry into the complaint is warranted." The courts have resisted this practice of adding or deleting words in a statute. [Emphasis added.]

The very same words were used by the legislator in amending s. 36(3) (S.C. 1985, c. 26, s. 69), which today reads as follows:

(3) On receipt of a report mentioned in subsection (1), the Commission

(a) may request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 39 to inquire into the complaint to which the report relates if the Commission is satisfied

(i) that, having regard to all the circumstances of the complaint, an inquiry thereinto is warranted, and

(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv); or

(b) shall dismiss the complaint to which the report relates if it is satisfied

(i) that, having regard to all the circumstances of the complaint, an inquiry thereinto is not warranted, or

(ii) that the complaint should be dismissed on any ground mentioned in subparagraphs 33(b)(ii) to (iv). [Emphasis added.]

In light of McBain v. Lederman, the use of these words by Parliament in amending the Act could not more clearly express an intention to give the Commission sufficient latitude to dispose of complaints otherwise than by a determination of their merit. The new wording suggests an intention to confine the role of the Commission to the administrative sphere. Should the Commission nevertheless feel an inquiry is not "warranted" on the basis that it is not substantiated, then in my view the reasoning in respect of the old wording might equally apply and the Commission would be required to act quasi-judicially. However, this is not for us to decide in the present case which was argued solely on the basis of the previous version of s. 36(3).

I now turn to the question whether the Commission has committed a reviewable error.

II - Did the Commission Commit a Reviewable Error?

The complaint which gave rise to the present proceedings alleges that the employer maintains a difference in wages between male and female employees employed in the same establishment who are performing work of equal value, contrary to s. 11 of the Act. Specifically, the complaint focusses on the discrepancy in the wages paid to the predominantly female employees of the Section costumes and those paid to the predominantly male employees of the Section décors.

Appellant's argument before this Court is two-fold. First, appellant contends that the Commission erred in law in applying s. 11 to the circumstances of this case. In appellant's submission, the organization of the work force perpetuates a wage differential between "women's work" and "men's work" and such job segregation in and of itself constitutes prima facie evidence of wage discrimination under s. 11 of the Act. In failing to recognize this, appellant contends that the Commission erred in law and that its decision should be set aside pursuant to s. 28(1)(a) of the Federal Court Act. Second, appellant submits that the Commission "failed to observe a principle of natural justice", also contrary to s. 28(1)(a). A number of submissions have been advanced under this heading, all of which are considered in the opinion of my colleague Sopinka J. as well as in the decision of the Federal Court of Appeal. However, in my view, the main submission is that it was not enough for the Commission to provide appellant with the factual basis of its decision; it also had to provide appellant with the legal basis of its decision, namely, how it compared the "skill, effort and responsibility" required for the tasks in Section costumes with the "skill, efforts and responsibility" required for the tasks in Section décors. Did it for comparison purposes assess individually the value of the various tasks in each Section or did it assess their collective value? Did it assess value in terms of value to the employer of the particular task performed in the context of its importance to the whole operation or did it proceed on the basis that all tasks were equally important to the operation and only the criteria in s. 11(2) can be considered? These are only some of the questions which arise on the legal application of s. 11 to the facts as found in the investigator's report.

I note at the outset that appellant's complaint is not based in any way on s. 15 of the Canadian Charter of Rights and Freedoms, which was not in force at the relevant time. Accordingly, it is not necessary to consider the possible application of the equality rights under the Charter to a claim based on wage discrimination. I now turn to a consideration of appellant's arguments.

1. Prima Facie Discrimination Under s. 11

Section 11 states:

11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

12. (1) Constitue un acte discriminatoire le fait pour l'employeur d'instaurer ou de pratiquer la disparité salariale entre les hommes et les femmes qui exécutent, dans le même établissement, des fonctions équivalentes.

(2) In assessing the value of work performed by employees employed in the same establishment the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.

(2) Les critères permettant d'établir l'équivalence des fonctions exécutées par des employés dans le même établissement sont les qualifications, les efforts et les responsabilités nécessaires pour leur exécution, considérés globalement, compte tenu des conditions de travail.

(3) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines issued by the Canadian Human Rights Commission pursuant to subsection 22(2) to be a reasonable factor that justifies the difference.

(3) Ne constitue pas un acte discriminatoire au sens du paragraphe (1) la disparité salariale entre hommes et femmes fondée sur un facteur reconnu comme raisonnable par une ordonnance de la Commission canadienne des droits de la persone en vertu du paragraphe 22(2).

(4) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.

(4) Des considérations fondées sur le sexe ne sauraient motiver la disparité salariale.

The evidence of professional segregation in the present case is considerable. Section costumes employs 40 persons, close to three-quarters of whom are female (72,5%), while Section décors employs 280 persons, nearly all of whom are male (99,65%). The work performed in the former section is sub-divided into 6 jobs by the employer, while that performed on the latter is sub-divided into over 20 jobs. The average salary paid in the Section costumes is $19,782, while in the Section décors that average is $21,715. This discrepancy of close to $2,000 is further reflected in the wage scales for jobs in each section. In the Section costumes, the wages range from $15,559 to $23,367, while in the Section décors, according to the appellant, the wages range from $15,559 to $25,579. In the appellant's submission, these wage discrepancies are especially serious in view of a principle of economics which posits an inversely proportional relationship between the degree of specialization of a task and the average salary of those who perform that task. Since the work performed in the Section décors is considerably more subdivided than the work performed in the Section costumes, on the basis of this principle, one would have expected a lower average salary in the former section. Appellant adds that the French job titles further indicate segregation, some jobs titles in Section costumes being feminine ("habilleuse", "habilleuse en chef", "script assistante") while all those in Section décors are masculine. This evidence, appellant contends, establishes that the organization of labour is segregated and that the lower wage scales in Section costumes reflect an undervaluing of the work performed by its predominantly female employees. In its factum, appellant writes:

[TRANSLATION] . . . when, within the same bargaining unit, composed of a minority of women, these women fill, majoritarily, certain "female jobs" which are less well paid than the other "male jobs" in the unit, and where men and women work under similar working conditions and at jobs having the same objective, proof of job segregation establishes prima facie that the wage disparity is in part caused by sex discrimination. [Emphasis in original.]

This argument raises the legal definition of wage discrimination under s. 11 of the Act. A first step in this direction is this Court's clear statement that intent is not a precondition to a finding of adverse discrimination under the Canadian Human Rights Act. As written by La Forest J. for the Court in Robichaud v. Canada (Treasury Board), supra, at p. 90:

Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence.

See also the elaborate discussion of the Chief Justice in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), supra, at pp. 1134-38, and the comments of McIntyre J. in Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, at pp. 173-74.

The cases of Robichaud v. Canada (Treasury Board) and Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) find their origin in complaints based on ss. 7 and 10 of the Act. These two provisions state as follows:

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

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

(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.

As intent is not a prerequisite element of adverse discrimination, a complainant may build his or her case under ss. 7 and 10 by presenting evidence of the type adduced by the complainant in the present case. Statistical evidence of professional segregation is a most precious tool in uncovering adverse discrimination. Section 11, however, differs from ss. 7 and 10. Its scope of protection is delineated by the concept of "equal value". That provision does not prevent the employer from remunerating differently jobs which are not "equal" in value. Wage discrimination, in the context of that specific provision, is premised on the equal worth of the work performed by men and women in the same establishment. Accordingly, to be successful, a claim brought under s. 11 must establish the equality of the work for which a discriminatory wage differential is alleged.

In other jurisdictions which have adopted equal pay for equal work legislation, no prima facie case of wage discrimination can be made solely by presenting evidence of segregation (for the United States, see Corning Glass Works v. Brennan, 417 U.S. 188 (1974); for the United Kingdom see Waddington v. Leicester Council for Voluntary Services, [1977] 2 All E.R. 633 (E.A.T.)) Commenting on the Canadian legislation generally, Walter S. Tarnopolsky, Discrimination and the Law in Canada (1982), at p. 417 states:

The onus is clearly upon the complainant to prove "equal work" or "similar or substantially similar" work.

For these reasons, with respect to the narrow question raised by appellant, evidence of professional segregation in and of itself does not seem to constitute a prima facie case under that provision, unless of course such evidence independently establishes the equal worth of the work under consideration, which is not the case here.

This brings me to the disputed issue whether the work of Section costumes and Section décors is of equal value within the meaning of s. 11. This issue is intimately linked to the procedure followed by the Commission in this case and I accordingly find it appropriate to discuss it in that context.

2. Breach of a Principle of Natural Justice

Although the principle of "equal pay for work of equal value" is expressed in a straightforward manner, the application of that principle through s. 11 of the Act gives rise to considerable difficulty.

To begin with, as stated by s. 11(3), there are exceptions to the principle. At the time material to this appeal, the Equal Wages Guidelines prescribed seven factors justifying a pay differential: different performance ratings, seniority, red circling, a rehabilitation assignment, a demotion pay procedure, a procedure of phased-in wage reductions, and a temporary training position. Since then, three other exceptions have been added, namely, an internal labour shortage, a reclassification to a lower level, and regional rates of wages (see SI/82-2, January 13, 1982, and the Equal Wages Guidelines, 1986, SOR/86-1082, s. 16). None of these exceptions plays a significant role in the present appeal.

Of key importance for the purpose of this appeal, as I said earlier, is the concept of "work of equal value". That concept is simple only in appearance.

One element of difficulty is the concept of equality. The prohibition against wage discrimination is part of a broader legislative scheme designed to eradicate all discriminatory practices and to promote equality in employment. In this larger context s. 11 adresses the problem of the undervaluing of work performed by women. As this objective transcends the obvious prohibition against paying lower wages for strictly identical work, the notion of equality in s. 11 should not receive a technical or restrictive interpretation. However, the degree of similarity which is required under that provision is not for this Court to decide here.

Another difficulty lies on the concept of value. Section 11(2) defines in general terms the manner in which the value of work is to be assessed. The criterion to be applied, under that provision, is the composite of the skill, effort, and responsibility required in the performance of the work and the conditions under which the work is to be performed. At the time material to this appeal, s. 3 of the Equal Wages Guidelines defined this criterion in somewhat greater detail:

3. Subsections 11(1) and (2) of the Act apply in any case in such a manner that in assessing the value of work performed by employees employed in the same establishment to determine if they are performing work of equal value,

(a) the skill required in the performance of the work of an employee shall be considered to include any type of intellectual or physical skill required in the performance of that work that has been acquired by the employee through experience, training, education or natural ability, and the nature and extent of such skills of employees employed in the same establishment shall be compared without taking into consideration the means by which such skills were acquired by the employees;

(b) the effort required in the performance of the work of an employee shall be considered to include any intellectual or physical effort normally required in the performance of that work, and in comparing such efforts exerted by employees employed in the same establishment,

(i) such efforts may be found to be of equal value whether such efforts were exerted by the same or different means, and

(ii) the assessment of the effort required in the performance of the work of an employee shall not normally be affected by the occasional or sporadic performance by that employee of a task that requires additional effort;

(c) the responsibility required in the performance of the work of an employee shall be assessed by determining the extent to which the employer relies on the employee to perform the work having regard to the importance of the duties of the employee an the accountability of the employee to the employer for machines, finances and any other resources and for the work of other employees; and

(d) the conditions under which the work of an employee is performed shall be considered to include noise, heat, cold, isolation, physical danger, conditions hazardous to health, mental stress and any other conditions produced by the physical or psychological work environment, but shall not be considered to include a requirement to work overtime or on shifts where a premium is paid to the employee for such overtime or shift work.

The notions of "skill, "effort", "responsibility" and "conditions" which one finds in the Act and the companion Equal Wage Guidelines are terms of art. They refer to the areas traditionally measured by industrial job evaluation plans. The Equal Pay Act of 1963, 29 U.S.C. {SS} 206(d), which added s. 6 to the Fair Labor Standards Act of 1938, prohibits the payment of lower wages "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . ." Interpreting this language in Corning Glass Works v. Brennan, supra, the Supreme Court of the United States determined that these four special words allow the use of industrial job evaluation plans in determining the value of work. Marshall J., who delivered the opinion of the Court, explained (at pp. 198-201):

The most notable feature of the history of the Equal Pay Act is that Congress recognized early in the legislative process that the concept of equal pay for equal work was more readily stated in principle than reduced to statutory language which would be meaningful to employers and workable across the broad range of industries covered by the Act. As originally introduced, the Equal Pay bill required equal pay for "equal work on jobs the performance of which requires equal skills." . . .

In both the House and Senate committee hearings, witnesses were highly critical of the Act's definition of equal work and of its exemptions. Many noted that most of American industry used formal, systematic job evaluation plans to establish equitable wage structures in their plants. Such systems . . . took into consideration four separate factors in determining job value -- skill, effort, responsibility and working conditions -- and each of these four components was further systematically divided into various sub-components. Under a job evaluation plan, point values are assigned to each of the subcomponents of a given job, resulting in a total point figure representing a relatively objective measure of the job's value.

In comparison to the rather complex job evaluation plans used by industry, the definition of equal work used in the first drafts of the Equal Pay bill was criticized as unduly vague and incomplete. Industry representatives feared that as a result of the bill's definition of equal work, the Secretary of Labor would be cast in the position of second-guessing the validity of a company's job evaluation system. They repeatedly urged that the bill be amended to include an exception for job classification systems, or otherwise to incorporate the language of job evaluation into the bill. . . .

We think it plain that in amending the bill's definition of equal work to its present form, the Congress acted in direct response to these pleas. . . . Indeed, the most telling evidence of congressional intent is the fact that the Act's amended definition of equal work incorporated the specific language of the job evaluation plan described at the hearings . . . that is, the concepts of "skill", "effort", "responsibility", and "working conditions".

While the legislative history of s. 11 of the Canadian Human Rights Act is somewhat less documented than its American counterpart, it can be no coincidence that the same four words, "skill", "effort", "responsibility" and "working conditions" were used by Parliament to breathe life into the principle of equal pay for work of equal value in Canada. These words are an indication that job evaluation plans can be used to determine whether jobs are of equal value under s. 11. In her Report of the Commission on Equality in Employment (1984), then judge Rosalie Abella noted this when she wrote (at p. 244):

The "equal value" approach calls for using job evaluations to examine pay structures in the labour force.

In no way can it be said however that the use of job evaluation plans is the only possible approach to s. 11 of the Act. Where the investigator relies on such a plan to assess the value of work, the Commission is not bound by his conclusions. Commenting upon the equal pay for work of equal value standard in s. 17(1) of the Labour Standards Act, R.S.S. 1978, c. L-1, the Saskatchewan Human Rights Commission stated in Harmatiuk v. Pasqua Hospital (1982), 1982 4900 (SK HRT), 4 C.H.R.R. D/1177, aff'd (1983), 1983 4725 (SK QB), 4 C.H.R.R. D/1650 (Q.B.) (at pp. D/1180-81):

The equal pay standard is not dependent on classifications, point values or job titles, but rather on actual job requirements and performance. Job content is the controlling factor. The Act contains its own definition of equal work which is independent of any classification system. Thus, although the point values allocated to 2 jobs may add up to unequal totals, it does not necessarily follow that the work being performed in such jobs is unequal when the statutory tests of the equal pay standard are applied.

Though indicating approval of the use of job evaluation plans, s. 11 of the Act leaves the Commission ample flexibility to reject the conclusions of such a plan where it is of the opinion that a different result should be reached having regard to the components of skill, effort, responsibility and working conditions. A point-rating plan does not lock the Commission into an inescapable conclusion.

The use of a job evaluation plan typically involves a number of steps. The first step is called a job analysis. It is an examination of the job's requirements and duties. From that analysis, a job description is prepared, often with the participation of employees who are interviewed or are asked to fill out questionnaires. A set of compensable factors is then set up. These are the components related to the elements of "skill", "effort", "responsibility" and "working conditions" which together define the jobs under consideration for the purpose of the evaluation. The compensable factors are weighed in respect of each other for their relative importance to the job. The job description is scanned to identify the presence and importance of these compensable factors. A score is assigned for each compensable factor, corresponding to the importance of that factor in the job. The weighed total score corresponds to the value of the job.

All steps of such a job evaluation plan involve a measure of subjectivity. Social beliefs which have traditionally led to the undervaluing of women's work may bring a certain measure of bias in the design and application of these methods. To illustrate, job content information which is supplied by the employees can contain certain characteristics which, as a result of underlying values, may be overlooked in the assessment. There may be confusion between truly compensable characteristics and stereotyped notions of what are perceived to be inherent attributes of being a woman. The definition of the compensable factors and their respective weights is therefore critical to the assessment. Stereotypes may at this stage cause some compensable factors to be overvalued in comparison with others. The analyst's and the employee's values and perceptions may influence the data used in the plan.

In this connection, commenting on the accuracy of the job evaluation method, Rosalie Abella notes in her report that (op. cit., at p. 250):

While this is theoretically a workable method, and is a great improvement over systems that compare jobs aspect-by-aspect, it is limited by the latitude for discretion it allows. Effort and responsibility are difficult to measure objectively.

Professor Ruth G. Blumrosen, in her article "Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964" (1979), 12 U. Mich. J. L. Ref. 397, expressed similar concerns in greater detail (at pp. 436-37):

Not all elements mentioned in a job description will be included in the selection of compensable factors. The choice of compensable factors may ignore the skills involved in typically women's work. The choice of factors and factor weights can have strong effects on the relative ranking of jobs and thus ultimately on the pay received for the job. . . .

Even when a factor is identified and selected, the importance of that factor in the job is subject to the vagaries of perception. White or male evaluators are more likely to better understand and appreciate the difficulties of traditional white or male jobs than traditional minority or women's jobs, and are likely to have a traditional disdain for "women's work" or "black jobs". [Footnote omitted.]

This criticism is echoed by Professors Bruce A. Nelson, Edward M. Opton and Thomas E. Wilson, in their study entitled "Wage Discrimination and the "Comparable Worth" Theory in Perspective" (1980), 13 U. Mich. J. L. Ref. 233, at p. 255:

Job evaluation systems are basically methods for systematizing and recording subjective judgments, and at each stage in the process -- job analysis, job description, selection of compensable factors, weighting of compensable factors, and the selection of the breadth of jobs to which a particular system will be applied -- the necessarily subjective judgments inevitably incorporate individual and societal biases. [Footnote omitted.]

The Commission itself seems to be aware of the possibility that bias can filter through the job evaluation plan. It proposes, in its Aiken Job Evaluation Manual, that "[b]oth sexes should be represented on a committee dealing with evaluations related to Section 11 of the Canadian Human Rights Act".

Before proceeding any further, I wish to stress that we are not called upon to approve or disapprove of the use of the Aiken method. The main question before this Court is whether the Commission failed to observe a principle of natural justice in dealing with the appellant's complaint.

The concept of equal value is central to the statutory prohibition against wage discrimination. At the same time, the evaluation of the worth of work is extremely delicate being as it is inherently subjected to individual bias and sexual stereotyping. In these circumstances, fairness requires that the job evaluation process be subjected to the purifying effect of the adversarial process. The vulnerability of the job evaluation plan method to individual bias and sexual stereotyping is best minimized by allowing the parties concerned an opportunity to tailor the elements of the testing to the special circumstances of each particular case. The Commission is accordingly under a duty to disclose to the parties concerned how it proposes to interpret the statutory principle of equal pay for work of equal value. Further, the parties concerned must be allowed to make an informed response to the Commission's interpretation and to urge upon it their own interpretation of the law.

The duty to disclose the legal basis of an administrative body's action was discussed by the Ontario Court of Appeal in Re Downing and Graydon (1978), 1978 1424 (ON CA), 92 D.L.R. (3d) 355. That case concerned a complaint lodged under the provisions of the Employment Standards Act, S.O. 1974, c. 112. The complainant alleged that her employer was paying her less than male employees hired at the same time and performing substantially the same work. Graydon, an employment standards officer, was appointed to investigate the matter. She initially interviewed the complainant to review the complaint and request further information. On the basis of this interview and following an investigation, the officer found that for a short time the complainant was indeed paid lower wages for identical work. However, the officer felt that the overall difference was too trivial to justify an adjustment of the remuneration. The complaint was ultimately rejected by Graydon. An application for judicial review was then taken against this decision. The Divisional Court dismissed the application. On appeal to the Court of Appeal, a majority allowed the appeal and set aside the employment standards officer's decision.

Delivering the judgment of the majority, Blair J.A. said (at pp. 374-75):

Generally, in a claim for "equal pay for equal work", more will be required than a bare mechanical recitation of facts referable to the wages and duties of a female complainant and her male counterparts. A qualitative judgment is required to determine what "work" was performed by the complainant and to decide whether that work was "substantially the same" as that of male employees. The complainant is entitled to know on what bases the comparisons are made; the criteria used in evaluating the work performed by various employees; and, as I previously emphasized, the way in which the officers interpret and apply the Act to her case. [Emphasis added.]

Wilson J.A. (as she then was) concurred and added the following remarks (at p. 377):

In my view the employment standards officers should have told the appellant how they proposed to apply the Act, again prior to their final adjudication, and given her an opportunity to put before them for their consideration any other interpretation of which the language of the section was susceptible and which might be more favorable to her cause. The employment standards officers were free, of course, to reject the alternative interpretation in making their adjudication but I think the rules of natural justice, and particularly the rule audi alteram partem, required them to hear it. I believe, in other words, that it was not the factual basis alone that the appellant was entitled to respond to but also the legal basis of the employment standards officers' decision. [Emphasis added.]

Although this duty is anchored in the common law, it finds additional support in the legislation, more particularly s. 22(2) of the Canadian Human Rights Act, which gives the Commission the power to issue binding guidelines:

22. . . .

(2) The Commission may, at any time on application or on its own initiative, by order, issue a guideline setting forth the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a particular case or in a class of cases described in the guideline and any such guideline is . . . binding on the Commission . . . .

This provision indicates Parliament's intent to give complainants the opportunity to be informed in advance of the legal principles guiding the Commission on a particular point. In adopting the Equal Wages Guidelines, the Commission did fulfill the legislative intent embodied in s. 22(2) to some extent. However, in such a case as the present one, Parliament's will is fully complied with by informing complainants at the beginning or other proper stage of the investigation of the Commission's proposed interpretation of the standards of "skill", "effort", "responsibilities" and "working conditions". In short, the rules of the game must be known before the game is played.

In Radulesco v. Canadian Human Rights Commission, supra, this Court acknowledged a concession made by the Commission at the hearing (at p. 410):

It [the Commission] also acknowledges that procedural fairness requires that the complainant be provided with an opportunity to make submissions, at least in writing, before any action is taken on the basis of the report; however, a hearing is not necessarily required. Finally, the Commission acknowledges that in order to ensure that such submissions are made on an informed basis, it must, prior to its decision, disclose the substance of the case against the party. [Emphasis added.]

In my view, Radulesco set no ceiling but simply recognized minimum requirements which were quite properly conceded by the Commission. The early disclosure of the legal basis for the proposed administrative action is quite consistent with the spirit of the Commission's concession in that case.

In order to determine whether the Commission satisfied its disclosure requirement, it is first necessary to describe fully the methodology it adopted. The Commission assessed the accuracy of the job evaluation plan previously used by the employer to classify the positions in both sections. To this end, the Commission relied on the result of another evaluation plan known as the Aiken plan. That plan, in the Commission's view, was "relatively bias-free". Therefore, to the extent that the classification of the jobs under the employer's plan was identical to that under the Aiken plan, the Commission felt it was authorized to conclude that there was no wage discrimination.

While this general strategy was disclosed to the appellant in the early stages of the investigation, the actual methodology of the Aiken plan was withheld from the appellant at that time. As of April 22, 1982, some eighteen months after the complaint had been filed, the Commission replied as follows to appellant's request to have access to the methodology:

[TRANSLATION] As regards the Aiken plan, I must point out that it is the property of the Treasury Board of Canada and for this reason we cannot supply you with a copy. We would however suggest that you direct your request to that agency . . . Needless to say, we will be using another evaluation plan in the investigation, probably our own, and we will of course send you a copy at that time.

Less than 6 months later, by October 19, 1982, the evaluation had been performed and the results militated in the investigator's view in favour of dismissing the complaint. A formal recommendation to this effect was issued on November 17, 1982. On December 23, 1982, a copy of this recommendation was forwarded to appellant, along with the plan used by the investigator to reach its conclusion:

[TRANSLATION] We also enclose herewith a copy of the evaluation plan used by us in comparing the positions.

At no time before this recommendation had appellant had an informed opportunity to respond to the legal basis of the Commission's action.

Without pausing to solicit appellant's arguments on the conformity of the method with s. 11 of the Act, the Commission then undertook a more extensive study of the employer's classification system, expanding the original sample to cover a greater number of jobs in the sections. Again, the Aiken plan was used to assess the value of these jobs and the results were compared to the employer's classification. By March 23, 1984, the investigator again concluded from the test results that no wage discrimination had occurred and recommended the dismissal of the complaint.

Only at this stage was the appellant afforded any opportunity to submit arguments in respect of the concept of equal value. The Commission had still not openly stated its interpretation of that legal standard.

The Aiken plan which was ultimately communicated to the appellant shows the complexity of the evaluation and the many possibly different outcomes of the process. Under that plan, the factor of "skill" is broken down into "complexity-judgment", "education" and "experience"; "effort", into "initiative" and "physical and mental demands"; and "responsibilities", into "result of errors", "contacts" and "supervision (character and scope)". The factor of "working conditions" remains entire, and as a result there is a total of nine compensable factors. Each of these factors in the Commission's Aiken plan is allocated a range of possible scores. "Complexity-judgment" ranges from 10 to 150; "education", from 10 to 120; "experience", from 5 to 150; "initiative", from 10 to 90; "physical and mental demands", from 5 to 30; "result of errors", from 5 to 100; "contacts", from 5 to 100; "supervision", from 5 to 80 for "character", and from 5 to 50 for "scope"; and "working conditions", from 5 to 40. As can readily be seen, the relative weights of each of the factors prescribed by s. 11 of the Act are unequal, being far more important in the case of "skill" and "responsibilities" than they are in the case of "effort" and "working conditions".

It is true as my colleague Sopinka J. points out that appellant made written submissions on a number of points in relation to the use of the Aiken plan. However these submissions were allowed only after the investigation had proceeded on the basis that the Aiken plan was the only appropriate method to assess whether work is of equal value under s. 11, and that the choice of compensable factors and their relative weights by the Commission were the correct ones in light of that provision. A consideration of appellant's arguments could have involved setting aside all the data so far collected and the analysis that had been done. Given the amount of time and effort spent on the investigation, it was hardly realistic to assume that at that point the process could have started afresh taking into consideration appellant's submissions contesting the basis of the investigator's report as not in accordance with the proper interpretation of s. 11.

These submissions were as follows. First the appellant submitted that the work performed by Section costumes and Section décors aims at the same objective, namely the production of a television show. Thus, the predominantly female employees in Section costumes and the predominantly male employees of Section décors "work . . . at jobs having the same objective" and the jobs are of equal value because they contribute equally to the production:

[TRANSLATION] . . . It should be noted that the handling and making of costumes are tasks as important in the production of a television program as the handling and making of scenery, if not more so. Makeup and costumes are frequently in the foreground on a television screen.

Second, assuming that the Aiken method was to be adopted as the appropriate legal standard under s. 11, appellant submitted that a number of true compensable characteristics were not caught by the subdivision of factors defined in the Commission's interpretation of that plan. For instance, the ability of employees in Section costumes to adapt to a flexible allocation of work, the resourcefulness of these employees, as well as the dexterity and speed with which they are required to perform the work were said to have been overlooked by the Aiken plan. In addition, appellant contested the factor of "experience". This factor, according to the appellant, was biased against women:

[TRANSLATION] It is amazing to discover that when female personnel take less time to attain the level required to perform duties effectively, they are given a lower rating and so in short are less well paid. On the other hand, when male personnel due to lack of ability or for other reasons take a long time to attain the required level, they are given a higher rating. [Emphasis in original.]

Third, as regards the respective weights of the nine compensable factors which were defined by the Commission, appellant argued that s. 11 requires the assignment of an equal weight to each of the four groups of compensable factors specified in the Act:

[TRANSLATION] It is also necessary, bearing in mind that the Act does not discriminate between criteria, that equal weight be given to each, namely 25% for qualifications, 25% for effort, 25% for responsibilities and 25% for working conditions. We wish to stress that neither the employer's old evaluation plan nor the AIKEN plan provides this parity. They both weight the single criterion of qualifications at about 60%.

To summarize, at no time was the appellant involved in the selection of compensable factors or the respective weighing of these factors. While the methodology was eventually disclosed to the appellant, this was done only after the job evaluation process had been initiated. As the evaluation process involved the participation of a large number of employees and took a considerable amount of time to complete, it was unrealistic to hope that appellant's interpretation of s. 11 would in fact be taken into account by the Commission before reaching a decision. From the beginning the Commission proceeded as if its own interpretation of the legal standard of equal value under s. 11 was not for discussion nor to be submitted to argument. This in my view does not satisfy the standard set in Re Downing and Graydon. Consistent with that case as well as the minimum duty acknowledged in Radulesco v. Canadian Human Rights Commission, appellant should have been allowed to make informed submissions with respect to the legal standard of equal value under s. 11, and, if the Aiken method was chosen as that standard, then appellant should also have been heard on the selection and relative weight of the compensable factors as well. Any other aspect of the methodology proposed to be adopted by the Commission which the parties might have felt could unfairly prejudice the assessment of the value of the work could also be dealt at such a hearing. Such a hearing should have been granted either orally or in writing, so as to give the parties concerned an effective means of advancing their own interpretation of the applicable legal standard before the investigation could proceed.

For these reasons, I am of the view that the Commission failed to observe a principle of natural justice in proceeding without affording such an opportunity to the appellant and that its decision must accordingly be set aside.

On the whole, I would allow the appeal, quash the decision of the Federal Court of Appeal dismissing the application for judicial review. Exercising that court's powers under s. 28(1) of the Federal Court Act I would set aside the decision of the Commission and remit the matter to it for further consideration.

Appeal dismissed with costs, WILSON and L'HEUREUX‑DUBÉ JJ. dissenting.

Solicitors for the appellant: Robert, Dansereau, Barré, Marchessault & Lauzon, Montréal.

Solicitors for the respondent: Russell G. Juriansz and Anne Trottier, Ottawa.

Solicitors for the mis en cause: Gaspard Côté and Raymond Piché, Montréal.

• McIntyre J. took no part in the judgment.