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Supreme Court of Canada resolves preliminary question in pay equity case
February 13, 2006

The Supreme Court of Canada has held that workers employed by the same employer but in separate bargaining units may be compared to each other for the purpose of determining allegations of wage discrimination under the Canadian Human Rights Act.

Nearly 15 years ago, the flight attendants’ union of Canadian Airlines filed a complaint under the Act, alleging discrimination on the basis that Canadian Airlines paid its predominantly female flight attendants differently than its predominantly male mechanics and pilots.

The Act provides that it is discriminatory to pay males and females working for the same “establishment,” and who are performing work of equal value, differently. In addition, the Equal Wage Guidelines, which supplement the Act, state that employees subject to a common personnel and wage policy are deemed to work for the same establishment, regardless of whether they are subject to different collective agreements.

The Canadian Human Rights Tribunal initially dismissed the complaint, finding that the flight attendants had failed to prove there was a common personnel and wage policy in existence. It found that the vast majority of the employer’s wage and personnel policies were found in separate, branch-specific policy manuals that applied only to a particular bargaining unit. Accordingly, it concluded that the flight attendants could not be deemed to work for the same “establishment” as the mechanics and pilots for the purposes of the Act.

On judicial review, the Federal Court upheld the dismissal of the complaint. The Federal Court of Appeal then reversed this decision, and the employer appealed to the Supreme Court of Canada.

The Supreme Court of Canada concluded that the flights attendants worked for the same establishment as the mechanics and pilots for the purposes of the Act. In this regard, the Court noted that “establishment” could not be equated with “bargaining unit,” as to determine otherwise would allow employers to use collective bargaining to implement discriminatory pay practices.

The Court remitted the matter to the Canadian Human Rights Commission to continue its investigation into whether there was wage discrimination.

Canada (Canadian Human Rights Commission) v. Canadian Airlines International Ltd,2006 SCC 1