Reasons for Judgment of the Honourable Mr. Justice Donald:

[1]                The primary issue before us is whether on judicial review the judge erred in substituting her judgment for the British Columbia Human Rights Tribunal's ("tribunal") in a case alleging wage discrimination based on sex.  We must also decide whether, even if both the Vancouver Police Board ("VPB") and the City of Vancouver ("City") could be said to be co-employers of the subject group, liability can be found when only the City is the employer of the comparator group.  Finally, it is alleged that the reviewing judge erred in making original findings, and incorrectly at that, as to the quantum of the loss in question.

[2]                Broadly speaking, the dispute concerns pay inequity between two employee groups each providing dispatch services to different departments of the City.  The subject group, mostly women, represented by the petitioners are dispatchers for the Vancouver Police Department ("VPD"); and the comparator group, mostly men, are dispatchers for the Vancouver Fire Department.  The wage disparity is about 40 per cent in favour of the latter group.

[3]                The petitioners filed a complaint against the City and the VPB under the Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code").  After 59 days of hearing, a single member tribunal dismissed the complaint [[2000] B.C.H.R.T.D. No. 28, 2000 BCHRT 30].  The tribunal found that only the VPB was the employer of the petitioners and so the complaint of disparate treatment could not stand.

[4]                On judicial review, the judge held that the tribunal erred on the test of reasonableness simpliciter when it adopted an unduly narrow approach to the question of co-employer status and she remitted the case for reconsideration.  The judge said that the magnitude of the loss claimed was such that if the petitioners were to succeed, the City, as the funding agency of the VPB, would have to be directly involved in providing the remedy.  The symmetry argument, that a finding of co-employer status must apply for both the subject and the comparator groups for liability to arise, was addressed for the first time in this Court and so the reviewing judge did not have an opportunity to comment on it.

[5]                I would dismiss the appeal.  In my view, the judge did not stray from the bounds of review on the test of reasonableness; she found an error in the tribunal's approach which is evident "upon a somewhat searching inquiry".  I do not accept the contention that she assigned a different weight to the factors considered by the tribunal and in doing so went beyond the reasonableness review test.  Nor can I agree that she erred by looking at the magnitude of the loss claimed.  For pay equity decisions to have any meaning, tribunals and courts asked to determine the identity of the employer need to consider who would be involved in providing the remedy.  The record is clear that the VPB was constrained by the budget approved by the City and so, given the size of the claim, the City would have to become directly involved in redressing the claim if it succeeded.

[6]                On the third issue, I regard the symmetry argument as specious.  Perfect correspondence of the employers of two groups to be compared for wage disparity under the Code is neither a logical nor a practical necessity.  The assertion that the VPD has no connection with the fire department is an empty argument when the commonality relevant to human rights law can be established by the City's dual role.  It will be for the tribunal on a re-hearing to decide whether the commonality is established on the evidence.

[7]                In a separate appeal, the petitioners allege the judge erred in declining to quash the tribunal's dismissal of their claim under s. 13 of the Code.  Section 13 can be read as a companion to s. 12, but it differs in several respects.  In my view, none of those differences are material in the circumstances of this case.  With respect, I question the utility of this appeal.  If liability is found under s. 12, pursuing a s. 13 claim is moot because there is no difference in the remedy available.  In any event, I find no error in the judge's treatment of this aspect of the case and I would dismiss the appeal related to s. 13.

Relevant Enactments

[8]                Section 12 of the Code is headed "Discrimination in wages" and provides:

12(1)    An employer must not discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work.

(2)        For the purposes of subsection (1), the concept of skill, effort and responsibility must, subject to factors in respect of pay rates such as seniority systems, merit systems and systems that measure earnings by quantity or quality of production, be used to determine what is similar or substantially similar work.

(3)        A difference in the rate of pay between employees of different sexes based on a factor other than sex does not constitute a failure to comply with this section if the factor on which the difference is based would reasonably justify the difference.

(4)        An employer must not reduce the rate of pay of an employee in order to comply with this section.

(5)        If an employee is paid less than the rate of pay to which the employee is entitled under this section, the employee is entitled to recover from the employer, by action, the difference between the amount paid and the amount to which the employee is entitled, together with the costs, but

(a)        the action must be commenced no later than 12 months from the termination of the employee's services, and

(b)        the action applies only to wages of an employee during the 12 month period immediately before the earlier of the date of the employee's termination or the commencement of the action.

Section 13 of the Code is headed "Discrimination in employment" and provides:

13(1)    A person must not

(a)        refuse to employ or refuse to continue to employ a person, or

(b)        discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(2)        An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3)        Subsection (1) does not apply

(a)        as it relates to age, to a bona fide scheme based on seniority, or

(b)        as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan.

(4)        Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

[9]                The Police Act, S.B.C. 1988, c. 53, [the 1988 version of the Act used because it was in force when the complaint was filed] imposes an obligation on municipalities with a population of more than 5,000 persons to provide policing:

3(2)      A municipality having a population of more than 5 000 persons shall provide policing in accordance with this Act and the regulations by means of one of the following:

(a)        establishing a municipal police force;

* * *

15(1)    Subject to subsection (2), a municipality having a population of more than 5 000 persons shall provide, in accordance with this Act and the regulations,

(a)        policing in the municipality with a police force of sufficient numbers

(i)         to adequately enforce municipal bylaws, the criminal law and the laws of the Province, and

(ii)        to maintain law and order in the municipality,
and …

[10]            Part 5 of the Police Act deals with police boards.  Pursuant to s. 24(1), members of municipal council, except the mayor, are ineligible to sit on the board; and s. 25(1) designates the mayor as the chairman.  Section 26 is headed "Board to establish municipal police board" and speaks to employment:

26(1)    A board shall establish a municipal police force and appoint a chief constable and other constables and employees the board considers necessary to provide policing in the municipality.

(2)        The duties and functions of a municipal police force are, under the direction of the board, to

(a)        enforce, in the municipality, municipal bylaws, the criminal law and the laws of the Province,

(b)        generally maintain law and order in the municipality, and

(c)        prevent crime.

(3)        Subject to a collective agreement as defined in the Industrial Relations Act, the chief constable and every constable and employee of a municipal police force shall be

(a)        employees of the board,

(b)        provided with the accommodation and materiel the board considers necessary for his duties and functions, and

(c)        paid the remuneration the board determines.

(4)        Part 6 of the Industrial Relations Act does not apply to discipline or dismissal of a constable appointed under this Act.

(5)        The board shall, in consultation with the chief constable, determine the priorities, goals and objectives of the municipal police force, and the chief constable shall report to the board each year on the implementation of programs and strategies to achieve the priorities, goals and objectives.

[Emphasis added]

[11]            Section 27 of the Police Act deals with estimates and expenditures.  Section 27(1) provides:

27(1)    Every board shall, on or before November 30 in each year, prepare and submit to the council for its approval a provisional budget for the following year to provide policing in the municipality.

FACTUAL BACKGROUND

[12]            At one time police officers performed the dispatching duties for the department.  Then came a period of "civilianization", that is, civilian communication operators ("Com Ops") replaced officers and were given a lower rate of pay.  The Vancouver Fire Department did not undergo such a change.  Firefighters continue to perform dispatching duties for the department and are paid at a rate approximately 40 per cent higher than the Com Ops.

[13]            The case for the petitioners is that the City, or the City and the VPB together, employed them and they must rectify the violations of the Code as set out in the complaints.

[14]            We are told that the bulk of the time before the tribunal was taken up with evidence relating to the question of which entity had the responsibility for collective bargaining and the classification of employees.  Though neither the VPB nor the City think the judge paid sufficient attention to the statutory scheme of the Police Act, it is common ground that the tribunal was entitled to look beyond s. 26 of that Act for the employer status issue because of the special human rights context.

[15]            In the words of Mr. Hamilton for the VPB, the evidence before the tribunal shows that the VPB and the City were "inextricably entwined".  This is a fair description as will be seen from the following examples taken from the tribunal's decision:

[105]    City staff are, however, involved in many activities related to police department personnel, including the communications operators.  [With the creation of a human resources function within the police department in 1997, some of these activities are no longer performed by the City.]  Communications operator positions are advertised through the City, which does the initial screening and testing of applicants.  Applicants are subsequently interviewed and selected by members of the police department.  The City maintains personnel files for employees of the Communications Centre.  The City pays the communications operators their wages and administers their benefits, and maintains their attendance records.  Communications operators are entitled to participate in City training programs, such as emergency preparedness, and other programs, such as the employee assistance plan.  The City provides the tools that are used in the Communications Centre.  As noted already, the police department has relied on City personnel for labour relations matters such as interpretation of the collective agreement.  The chief constable is part of the City’s corporate management team.  The City’s legal counsel is present at many Board meetings and advises the Board and police department. Mr. Rollins testified that the city manager was involved in in [sic] a number of issues related to the police department.  Those issues included:  restructuring the police department, the budget for the department, responsibility for patrolling Ports Canada, and the establishment of the Emergency Operations Communications Centre.  Mr. Rollins did not think the police department was treated differently than other City departments with respect to similar issues.

* * *

[107]    The City and the police department work together on a number of policing issues including prostitution, policing issues in the downtown eastside, problem houses, “cops on bikes”, and the Stanley Cup riot inquiry.  Ms. Watson testified that the City and the Board work cooperatively.  The B.C. Police Board Handbook describes the relationship of a police board to its funding municipality as follows:

… the major role of the board in relation to the council is in the development and presentation of the annual police department budget.  In practice this is generally done in a cooperative, collegial manner, both council and board working together to ensure effective policing in their community. (Exhibit 367, Tab 1, p. 18)

THE DECISIONS BELOW

[16]            The tribunal dismissed the complaint under s. 12 for the following reasons:

[117]    City staff were involved in evaluating the rates of pay for positions within the police department, including those of the communications operators.  However, on the preponderance of the evidence, I find that they were doing so on behalf of the Board.  They took their instructions from police staff and reported to the Board.  It was the Board that decided whether to approve the proposed classifications and rates of pay.  Moreover, the job evaluation division was funded by the GVRD.  Although the communications operators’ positions were created by City Council, the Council did not consider the specifics of the classifications.

* * *

[121]    In my opinion, the City is not the Complainants’ employer, either alone or as a co-employer with the Board.  I reach that conclusion for the following reasons:  First, based on the criteria described above, and giving greatest consideration to responsibility for compensation practices, I find that the Board is the employer.  The Board is primarily responsible for collective bargaining with and for determining the job classifications of communications operators.  The City has little or no influence on the classification of the positions or in collective bargaining related to the communications operators’ positions.  Therefore, the City would not be able to independently comply with a s. 12 remedy.  Second, the Police Act unambiguously describes employees of the police force as employees of the Board.  Under s. 4 of the Code and the principles of statutory interpretation discussed above, it is open to me to find an employer for the purposes of the Code that is different than the employer under the Police Act.  However, taking into account the purposes of the Code, I do not reach a different conclusion.  Section 12 is not pay equity legislation.  In the ONA case [Ontario Nurses Association v. Regional Municipality of Haldimand-Norfolk (1989), 1 P.E.R. 17 (Ont. P.E. Trib.)], the majority relied on the purpose of the Pay Equity Act [S.O. 1987, c. 34] – “to redress systemic gender discrimination in compensation for work performed by employees in female job classes” – to justify crossing bargaining unit boundaries to find a male comparison group.  Although it is appropriate to apply a broad and liberal interpretation to the meaning of “employer” within the Code, the purpose of s. 12, even when read in light of s. 3 of the Code, is more constrained than that of the Pay Equity Act.  In my opinion, it is not necessary to find the City to be the employer to ensure consistency with the purpose of s. 12.

[122]    Having found that the City is not the Complainants’ employer, it follows that the Complainants cannot establish that they were paid less for substantially similar work being done by other employees of that employer, namely fire dispatchers.  I therefore find that the Complainants’ complaints under section 12 are not justified and they are dismissed.

[17]            The reviewing judge found the tribunal's reasoning incomplete, and I respectfully agree with her.  Having accepted that a co-employer status was a possible finding, the tribunal stopped the analysis at the point of saying that "the City would not be able to independently comply with a s. 12 remedy".  That leaves unanswered the question whether the VPB and the City would have to act together to remedy the harm as co-employers.

[18]            I set out the conclusions of the reviewing judge [(2003), 6 Admin. L.R. (4th) 224, 2003 BCSC 1348]:

[155]    I must accept the findings of fact made by the Tribunal that:

1.         The Board has responsibility for collective bargaining.

2.         The Board is responsible for classification.

[156]    There is evidence on which these findings could properly be made.  I do not think that the fact that the Tribunal did not review all the conflicts in the evidence permits me to decide that these findings are unreasonable.  The evidence of Stewart, Graham, and Zora provides a sufficient and reasonable basis upon which the Tribunal could make the findings it did.

[157]    From these two findings, the Tribunal concluded that the City was not the Petitioners’ employer.  I find that this conclusion is not reasonably supportable, given the analytical framework set out by the Tribunal.  The weakness in the conclusion stems from a misapplication of the notion of remedial analysis.

[158]    The Tribunal unreasonably narrowed the scope of its inquiry, given the nature of the adjudicatory task at bar.  Although the Tulk [Tulk v. Newfoundland (Ministry of Health and Community Services) (2002), 210 Nfld. & P.E.I. R. 101 (T.D.)], Love Kumar Sharma [Love Kumar Sharma v. Yellow Cab Company Ltd. (1983), 4 C.H.R.R.D/1432 286 (B.C. Bd. Inq.)], and Strenja [Kathleen Strenja v. Bob Bennetts Sr. and Comox Taxi Ltd. (1981), 2 C.H.R.R.D./585 (B.C. Bd. Inq.)] cases are not binding authority, they are illustrative of the application of a large liberal and purposive interpretation of the Code.  Here, while explicitly purporting to employ a large, liberal analysis as required by the Code, the Tribunal based its conclusion on two factors and ignored the broader circumstances of the case.  Given the two findings above, the Tribunal concluded that the Board was autonomous and, thus, that the City was not a co-employer as it did not perform these higher-level functions.

[159]    Yet, it is not in dispute that the City bears the burden of financing the payroll of the Police Department.  The sum of money required to remedy the current wage disparity is, and was, on the evidence, far beyond the ordinary budget of the Police Board.  Thus, while the Board could accede to a renegotiated pay scale, it is unclear and the Tribunal did not find, whether the Board could actually require the City to fund the increased expenditure.

[160]    Therefore, it appears that the Tribunal was not alive to the fact that, while the Board is indeed autonomous within a certain sphere of influence, it is potentially constrained in its actions.

[161]    Here lies a gap in the logic of the conclusion.  While the Tribunal specifically found that, given the Board’s exclusive control over bargaining and classification, the City could not independently remedy the wage disparity, the Tribunal did not address the question of whether the Board could, of its own accord, accomplish that same task, given the role of the City council in approving the Board’s budget.  Furthermore, at ¶52 of its reasons, the Tribunal appears to base its decision as to who could remedy the disparity on the fact that the Board originally “established the existing compensation practises”.  The Code is a dynamic remedial statute and ought not to be interpreted so narrowly in a temporal sense.  The discrimination, if any, has existed since the civilianization of the Com ops positions and the opportunity to remedy that alleged discrimination has existed continuously since then.

[162]    In essence, the Tribunal queried: “Who can remedy the wage discrepancy?” and answered: “The City cannot do it alone”, given the Board’s exclusive control over certain higher-level employment functions.  The Tribunal then concluded: “Therefore, the City was not the Petitioners’ employer”.  However, the Tribunal did not ask or answer the critical question, given its framework for the inquiry at hand:  “Can the Board alone without the City remedy the wage discrepancy?”

[163]    In other words, the Tribunal appears to have over-looked the importance of the financial relationship between the various parties in this case.  This oversight resulted in a conclusion that is not reasonably supported by the findings of fact made from the evidence, as the logical chain is missing a necessary link and is inconsistent with a flexible purposive interpretation of the Code.

[164]    The Court’s task on judicial review, given a standard of reasonableness, is to ensure that “the reasons, taken as a whole, are tenable as support for the decision” (Ryan, [Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20]).  Here, the Tribunal’s decision unreasonably narrows the considerations applicable in determining who employs the Petitioners for the purposes of s. 12 of the Code and, as a result, does not adequately explain how the Board alone or the Board without the City could remedy the alleged breach of s. 12.  Although the Tribunal said it was applying a broader definition of employer, as is appropriate under s. 12, it actually applied a narrow definition.

[19]            Accordingly, the judge set aside the tribunal's s. 12 decision in part and remitted it for reconsideration.

[20]            The judge dismissed the challenge to the tribunal's s. 13 determination primarily on the footing that the tribunal made a reasonable finding on the evidence that the change to personnel in the dispatch function is not discriminatory.  This is what she said:

[194]    The Petitioners’ submission on this point cannot succeed.  The Tribunal accepted the evidence set out above, but found that the evidence was not proof of feminization.  What the Petitioners had to prove was that they were paid less because they were women.  This evidence referred to by the Petitioners proves only that they were paid less because they were not police officers, that their positions were at first undervalued and in 1990, a period not covered by the complaint, their wages were increased as a consequence of the arbitration award of Mr. Larson.  The very purpose of civilianization was to save money.  The Tribunal determined that this evidence did not meet the test of discrimination.  That conclusion is not unreasonable given the evidence at bar.

[Emphasis added]

ANALYSIS

Misapplication of the Review Test

[21]            It is said by the VPB and the City that the judge assigned a different weight to the factors considered by the tribunal and in so doing went beyond the reasonableness review test.  They further alleged that the judge failed to give the tribunal's decision a fair reading, attributing to the tribunal a conclusion that the board was autonomous, and holding that the tribunal failed to consider the financial dependency of the VPB on the City.

[22]            The guide for applying the reasonableness test is Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, where Iacobucci J. for the court wrote:

(2)        What Does the Reasonableness Standard Require of a Reviewing Court?

48        Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (see Southam, [Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748], at para. 61).  In Southam, at para. 56, the Court described the standard of reasonableness simpliciter:

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.  Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. [Emphasis of Iacobucci J.]

49        This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and "look to see" whether any of those reasons adequately support the decision.  Curial deference involves respectful attention, though not submission, to those reasons (Baker, [Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817], at para. 65, per L'Heureux-Dubé J. citing D. Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286).

50        At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the fundamentally different process of reviewing a decision for correctness.  When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct.  In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been.  Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons.  The standard of reasonableness does not imply that a decision-maker is merely afforded a "margin of error" around what the court believes is the correct result.

51        There is a further reason that courts testing for unreasonableness must avoid asking the question of whether the decision is correct.  Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness.  For example, when a decision must be taken according to a set of objectives that exist in tension with each other, there may be no particular trade-off that is superior to all others.  Even if there could be, notionally, a single best answer, it is not the court's role to seek this out when deciding if the decision was unreasonable.

52        The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness.  In Southam, supra, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted "in the immediacy or obviousness of the defect".  Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective.  A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963-64, per Cory J.; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9-12, per Gonthier J.).  A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.

53        A decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might only be discovered after "significant searching or testing" (Southam, supra, at para. 57).  Explaining the defect may require a detailed exposition to show that there are no lines of reasoning supporting the decision which could reasonably lead that tribunal to reach the decision it did.

54        How will a reviewing court know whether a decision is reasonable given that it may not first inquire into its correctness?  The answer is that a reviewing court must look to the reasons given by the tribunal.

55        A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.  If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56).  This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

56        This does not mean that every element of the reasoning given must independently pass a test for reasonableness.  The question is rather whether the reasons, taken as a whole, are tenable as support for the decision.  At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result.  Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.

[Emphasis added]

[23]            I do not accept the criticisms of the reviewing judge's decision.  The judge's references to the tribunal's discussion of autonomy and financial dependency were made in the context of trying to understand why the tribunal stopped short of completing the co-employer analysis.  For whatever reason, the tribunal did not give adequate consideration to the proposition that only the VPB and the City, acting together, could redress the alleged wrong.  That proposition has not been tested against the evidence and hence it is appropriate that it be sent back to the tribunal.

[24]            I should emphasize that, on my reading of the judge's reasons, she set aside the tribunal's s. 12 decision in part, not by drawing a different factual or legal inference from that of the tribunal, but on a finding of a serious flaw in the reasoning process of the tribunal.

Symmetry – The Same Employer for Each Group

[25]            At the introduction to these reasons, I expressed my view of the symmetry argument.  The point taken by the VPB and the City is that a finding of co-employer status must apply to both groups for liability to arise.  It is said that the VPB could not be held responsible for what happens in the fire department.  With respect, I think this point is spurious.  It is not alleged that the firefighters' human rights have been violated.  Since one of the commonly accepted criteria for employer status in the human rights jurisprudence is the capacity to effect a remedy [see Ontario Nurses Association v. Regional Municipality of Haldimand-Norfolk (1989), 1 P.E.R. 17 (Ont. P.E. Trib.); and Barrie (City) v. Canadian Union of Public Employees, Local 2380, [1991] O.P.E.D. No. 41 (Ont. P.E. Trib.)], what matters is that the City may be common to both groups said to be comparable yet differentially compensated.  Symmetry is meaningless in terms of the objects and purposes of the Code.  Complete uniformity of the employer as regards each group has the surface appeal of orderliness but it contributes nothing to the adjudication of the complaints.

The Reviewing Judge's Remedial Approach

[26]            The VPB and the City gave less emphasis to this argument than with their other submissions.  They alleged that the judge erred in making original findings, and in the course of that arrived at the wrong estimation of the loss.

[27]            I cannot give effect to these contentions.  In my view, it was necessary to estimate the potential value of the claim to determine whether the scale of the loss claimed, not the precise amount, was such as to inevitably involve the City in providing a remedy.

[28]            As to arriving at an erroneous estimate, it is said that the judge should have confined the assessment to the narrow group found by the tribunal in obiter dicta to be comparable to employees at the fire department.  Although the tribunal dismissed the complaint, it went on to compare the two groups.  The results of the tribunal's comparison were challenged in the petition but that aspect was adjourned generally at the hearing.  It is argued that had the judge calculated the losses alleged by the relatively small comparable group, the amount would have been small enough to be managed within the VPB's budget without the City's involvement.  In my view, the correct way to analyze the remedial factor was to estimate the total exposure of the respondents to the complaint because the obiter findings of the tribunal are not necessarily the last word on the subject.

[29]            For these reasons I would dismiss the appeal on the s. 12 complaint.

THE SECTION 13 APPEAL

[30]            On application of the reasonableness test to the s. 13 complaint, the reviewing judge found no reversible error in the tribunal's determination that the claim of discrimination was not made out.

[31]            I would dispose of this appeal substantially for the reasons of the reviewing judge.

“The Honourable Mr. Justice Donald”

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[32]            I have had the opportunity of reading Mr. Justice Donald’s judgment.  He has set out the material facts and applicable legislation, and he has quoted the most pertinent parts of the decisions rendered by the tribunal and the judge whose judgment gives rise to this appeal, none of which I need repeat.  The appeal on the claim under s. 12 of the Code turns on the narrow question of whether the tribunal’s determination that the City was not the Com Ops’ employer is unreasonable.  In my respectful view, the determination meets the standard of reasonableness defined in Law Society of New Brunswick v. Ryan (“Ryan”), quoted by my colleague (para. 22), such that I would allow the appeal. 

[33]            I would dismiss the appeal on the s. 13 claim on the same basis as would my colleague. 

[34]            Section 12 of the Code provides that an employer must not discriminate between employees by paying those of one sex less than those of another when they are employed to perform substantially similar work.  The Com Ops claim that they should be paid no less than what they maintain is a comparative group, the Fire Department dispatchers.  The Fire Department dispatchers are employees of the City.  Thus, it is only if the Com Ops are also employed by the City that any case could be made out under s. 12.  No liability could attach to the VPB alone because it clearly does not employ the Fire Department dispatchers.  What the tribunal had to decide was whether the Com Ops are employed by the VPB or by the City, or whether, as the Com Ops contend, there is a “middle ground” whereby they are employed by both the VPB and the City as co-employers.

[35]            The tribunal recognized the three possibilities and concluded that the Com Ops were employed by the VPB alone.  In so doing, it undertook an extensive analysis of the acknowledged interdependence between the VPB and the City, which it summarized as follows:

[112]    There is a clear interdependency between the Board and the City.  The City is responsible for financing the operations of the police both under the Police Act and in practice.  The Board is responsible for preparing a budget; however, that is actually done by staff of the police department in consultation with staff of the City and within parameters set by the City.  The Board itself plays a very small role in the budget process.  It is significant that, unlike other City departments, the Board has an external avenue to resolve budgetary disputes with the City: it can take the issue to the Police Commission.

[113]    Responsibility for compensation practices rests primarily with the Board.  Under the Police Act, the Board is responsible for remuneration of its employees.  In practice, that is done through collective bargaining.  The responsibility for bargaining is delegated to police department staff who, in turn, instruct staff of the GVRD. There is no evidence that the City controls that bargaining process or attempts to influence the proposals put forward on behalf of the Board.  On occasion, City staff have been involved in bargaining on behalf of the Board.  They were part of the Board's bargaining team.  GVRD staff were also on the bargaining team.  I am not persuaded that, on those rare occasions when City staff were on the bargaining committee, they sought to influence on behalf of the City the positions taken or agreed to by the bargaining committee.  Absent such evidence, I cannot conclude that the City influenced the bargaining process.

[114]    However, the City was required to ratify the Board's collective agreements after the Board signed them. That is not surprising.  The City clearly has an interest in the outcome of bargaining involving the Board: it must pay the bill.  This is not a sufficient basis from which to conclude that the City was responsible for compensation practices in the way that an employer would be.

* * *

[117]    City staff were involved in evaluating the rates of pay for positions within the police department, including those of the communications operators.  However, on the preponderance of the evidence, I find that they were doing so on behalf of the Board.  They took their instructions from police staff and reported to the Board.  It was the Board that decided whether to approve the proposed classifications and rates of pay.  Moreover, the job evaluation division was funded by the GVRD.  Although the communications operators' positions were created by City Council, the Council did not consider the specifics of the classifications.

[118]    The City was responsible for administering the pay and benefits of the communications operators and assisted in labour relations matters involving the Board.  In my opinion, these were merely administrative arrangements designed to reduce duplication of resources.  They carry very little weight in determining who is the employer.

[119]    Finally, the nature of the business, policing, is important to [the] City.  Issues of safety are a central concern to the communities that the City serves.  Moreover, the City is required to provide policing under the Police Act. However, because of the nature of policing and the need to avoid political interference in that service, the legislature has created a degree of independence for the police department that is not present for other important departments, such as the fire department.

The tribunal then concluded that the City was not the Com Ops' employer, either alone or as a co-employer with the VPB in the passage quoted by my colleague (para.  16).

[36]            I do not consider any further analysis of the possible “middle ground” was required.  Indeed, it is not clear to me what more could be said to bear on the question of whether the City was a co-employer.  The tribunal concluded that it did not employ the Com Ops at all and I see nothing unreasonable in the analysis it undertook or the reasoning it employed in reaching that conclusion. 

[37]            As both the tribunal and the judge recognized, human rights legislation is remedial in nature and is to be given such fair, large, and liberal interpretation as will best ensure that its objects are attained:  Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114.  The principles developed in other contexts are not determinative of liability under human rights law; liability must be determined having regard to the remedial purpose of the legislation:  Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, paras. 11-12.  The tribunal was therefore required to consider the question of who employed the Com Ops in the context of the remedial purposes of s. 12 and it purported to do so.

[38]            In deciding whether the Com Ops are employed by the City, the tribunal followed the approach taken in Ontario Nurses Association v. Regional Municipality of Haldimand-Norfolk (“ONA”) (1989), 1 P.E.R. 17, [1989] O.P.E.D. No. 3 (Ont. P.E. Trib.) (QL) and Barrie (City) v. Canadian Union of Public Employees, Local 2380, [1991] O.P.E.D. No. 41 (Ont. P.E. Trib.) (QL) both of which were concerned with claims under pay equity legislation where the same kind of question arose. 

[39]            In ONA, the issue before the Ontario Pay Equity Tribunal was whether the regional municipality was the employer of the regional police force for the purposes of the province's pay equity legislation.  As in this case, the police board was also potentially the employer.  The tribunal applied a four-part test to the employer question.  It considered:  who has overall financial responsibility; who has responsibility for compensation practices; what is the nature of the business, service or enterprise; and, if there is more than one employer, what finding would be most consistent with achieving the purpose of the pay equity legislation?  In ONA, the majority of the tribunal ultimately found the municipality was the employer.  The Ontario Divisional Court and the Ontario Court of Appeal found the decision of the tribunal was not patently unreasonable: (1989), 36 O.A.C. 276 (Div. Ct.), aff'd (1990), 41 O.A.C. 148 (C.A.). 

[40]            In Barrie, the Pay Equity Tribunal revisited the ONA test.  The issue before the tribunal was whether the City of Barrie or the Barrie Public Library Board was the employer of the employees working at the Barrie Public Library.  The majority of the tribunal modified the ONA four-part test to assign primary importance to identifying the entity responsible for existing compensation practices and valuing work.  The majority concluded the Library Board was the employer, primarily because the Board controlled its own compensation practices and attached the value to the work performed by its staff.

[41]            As the tribunal recognized, the approach taken in those two cases requires consideration of factors that are well beyond what traditional common law perceptions of the employer-employee relationship might dictate.  The fact that the VPB is financially dependent on the City is of course a prominent aspect of this case.  The tribunal’s analysis of the authorities it considered led it to conclude in accordance with Barrie as follows:

[55]      …the most important element is the entity responsible for compensation practices and the valuing of the Complainants’ work because this means it would be capable of eliminating any wage gap that may be found to exist.  The other factors are relevant considerations and may, in some cases, carry greater weight.  However, in this case the most important question to ask is who can provide a remedy to the Complainants if their complaint is substantiated, not who ultimately pays the bill.   

[Emphasis added.]

[42]            The essence of the tribunal’s decision appears to me to be its conclusion that the responsibility for the Com Ops' compensation lay with the VPB, not with the City:

[96]      Communications operators’ wages are determined through a combination of collective bargaining and the job classification process. I find that the Board is responsible both under the Police Act and in practice for the positions taken by the employer in collective bargaining.  The City or City employees play a minor role in that process.  The City has a keen interest in the outcome of the bargaining and is responsible for paying the wages that result from it.  That interest relates to its responsibility for providing the budget.  City staff were directly involved in the process leading to the classification of the communications operator positions.  However, I find that they were acting on behalf of the Board, and that the responsibility for approving the classifications was the Board’s.  The involvement of City Council was to approve the creation of positions, which relates to its funding responsibility.  The City was not interested in the details of the classifications.  In my opinion, the involvement of the City in other administrative activities related to wages and benefits carries minimal weight in determining the employer.  In summary, the Board carries the primary responsibility for compensation practices.  The City’s involvement in these activities relates primarily to its overall financial responsibility.

[43]            Given that responsibility for the Com Ops' compensation rests with the VPB, the City could not provide a remedy.  Only the VPB could alter the Com Ops pay scale because it was primarily responsible for compensation practices in relation to the Com Ops' employment.  The City might ultimately “pay the bill” but that does not mean it is the City that can provide the remedy.  If it were otherwise, the determination of the employer would turn on little more than a kind of “deep pocket” approach to the analysis.

[44]            Although she cited additional authority where what might be said to be a somewhat broader approach has been taken than in ONA and Barrie, the judge did not say, nor would I, that it was unreasonable for the tribunal to have adopted the analytical framework it used in considering whether the Com Ops are employed by the City. 

[45]            However, as expressed in the passage of her judgment quoted by my colleague (para. 18), the judge found the tribunal’s determination that the Com Ops were not employed by the City was not reasonably supportable because the tribunal misapplied the notion of remedial analysis under the Code.  Specifically, the judge took the view that the tribunal had based its conclusion on no more than the VPB having responsibility for collective bargaining and job classification, and it therefore had failed to properly consider the financial relationship between the parties in the case or, as she says, the tribunal failed to consider that, although the VPB would be autonomous for the purposes of renegotiating the Com Ops’ pay scale, it was potentially constrained in its actions because it is entirely funded by the City. 

[46]            She accepted the tribunal’s finding that the City could not fund a higher pay scale for the Com Ops to remedy any wage disparity without the VPB concurring.  However, the judge saw this as raising a question of whether the VPB could require the City to fund an increase in the Com Ops’ pay scale, and that led her to conclude that the tribunal had failed to consider what she characterized as the critical question:  “Can the VPB alone, without the City, remedy the wage discrepancy?”  She considered the tribunal’s failure to consider this question constituted a missing link in its analysis and that its determination unreasonably narrowed the considerations applicable to determining whether, for remedial purposes, the City employed the Com Ops.

[47]            The VPB and the City contend that the judge raised a question that has no part to play in the tribunal’s analysis because it does not bear on whether the City employed the Com Ops.  The Com Ops maintain that the question had to be addressed.  They say the logical extension of the tribunal’s analysis, that, based on ONA and Barrie, the City was not the Com Ops' employer because it could not independently comply with a  s. 12  remedy, is that the VPB could be the employer only if it could independently comply.  But the tribunal did not consider the implications of that corollary. 

[48]            I consider the position taken by the VPB and the City with respect to the question the judge raised to be sound.  The Com Ops' proposition is flawed because the tribunal determined that, unlike the City, it was the VPB that if required could provide a remedy in that it was primarily responsible for compensation practices as opposed to being the entity that might ultimately “pay the bill”.  In my view, on the tribunal’s reasoning, the corollary does not arise. 

[49]            It is evident from the passage of the tribunal’s decision quoted by my colleague (para. 16) that the tribunal did not confine its consideration of the circumstances to the fact that the VPB was responsible for collective bargaining and job classification, as the judge suggested, or even to the question of responsibility for compensation practices.  It also took into account the important fact that the governing legislation provides unambiguously that the Com Ops are employees of the VPB.  The tribunal recognized that the legislation did not preclude a determination that the Com Ops' employer was other than the VPB, but concluded that the remedial provisions of the Code did not lead to such a determination.  The tribunal also considered the purposes of the provision at issue, but did not consider it necessary to find that the City employed the Com Ops to ensure consistency with the purpose of s. 12.

[50]            I have difficulty seeing how the answer to the question the judge posed would advance the determination of whether the City employed the Com Ops.  In my view, it makes no difference whether the VPB could compel funding if it saw fit to raise the Com Ops’ pay scale which the judge said had not been determined.  I consider that the question the judge said the tribunal failed to ask is not sufficiently relevant that the tribunal can be faulted for not having considered it.

[51]            I do not consider that read as a whole the comprehensive decision of the tribunal failed to meet the standard of reasonableness in the sense that there is no line of analysis that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived (Ryan, supra, at para. 55).

[52]            There was, in my view, no missing link in the tribunal’s analysis in relation to whether the VPB could act independently of the City to remedy any wage deficiency.  The question was whether the Com Ops are employed by the City.  The tribunal determined that they were not and its conclusion was not in the circumstances unreasonable.

[53]            For these reasons, I would allow the appeal, set aside the judge’s order, and substitute an order dismissing the Com Ops’ application for judicial review.

“The Honourable Mr. Justice Lowry”

I Agree:

“The Honourable Madam Justice Kirkpatrick”