Wong v. Canada (T.D.) [1997] 1 F.C. 193
T-1078-91
B E T W E E N:
VINCENT WONG, REG MORRETTO, WILLIAM BALCOMBE,
HARVEY HETHERINGTON, ROGER BIDDLE,
DUANE CORRIGAL and WILLIAM HEITMAR
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
ROTHSTEIN J.:
ISSUE
On this motion for summary judgment by the defendant, Her Majesty the Queen, the issue is whether the plaintiffs have suffered discrimination based on their province of residence, pursuant to subsection 15(1) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. The plaintiffs seek to challenge a collective agreement between the Government of Canada and the Public Service Alliance of Canada (PSAC) under which the plaintiffs, employees of the Government of Canada in Saskatchewan, are paid at a lesser scale of pay than employees doing equivalent work elsewhere in Canada. The defendant says that on the basis of agreed or assumed facts in this case, the plaintiffs do not suffer discrimination based on their province of residence and there is no genuine issue for trial; accordingly, the action must fail and summary judgment is appropriate in the circumstances. While a motion for summary judgment is not intended to shut-down a triable case before it has been heard, the Court is permitted to take a "hard look" at the merits and decide if there are genuine issues for trial.
FACTS
For purposes of this summary judgment application, the following facts are agreed:
| 1. The plaintiffs are employees of the Government of Canada in the Department of Transport and are employed at the Saskatoon Airport. |
| 2. They are members of the General Labour and Trades Group (GLT Group) represented by PSAC. |
| 3. The wages of the plaintiffs are set under a collective agreement which provides for pay scales based on geographic zones. One zone is the Province of Saskatchewan. The pay scale for GLT Group employees in the Province of Saskatchewan is lower than for other persons with the same job classification and doing the same work elsewhere in Canada. |
IS A COLLECTIVE AGREEMENT SUBJECT TO SUBSECTION 15(1)?
The Supreme Court of Canada has held that a collective agreement in which the Government of Canada is a party is law, and as such is subject to subsection 15(1) of the Charter. Some question might arise over how subsection 15(1) could accommodate a challenge by employees whose union has voluntarily agreed to a collective agreement. On this point, La Forest J. has made it clear in Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570, upholding his finding on this issue in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, that the Government of Canada cannot pursue policies violating Charter rights by means of contract. He states in Douglas/Kwantlen at page 585:
| The fact that [a] collective agreement was agreed to...does not alter the fact that the agreement was entered into by government pursuant to statutory power and so constituted government action. To permit government to pursue policies violating Charter rights by means of contracts and agreements with other persons or bodies cannot be tolerated. The transparency of the device can be seen if one contemplates a government contract discriminating on the ground of race rather than age. |
Thus, the government cannot contract out of the Charter. In some circumstances, acceptance of the contractual obligations and benefits by the contracting parties could amount to a waiver of Charter rights. In others, it may be that the collective agreement constitutes a reasonable limit under section 1 of the Charter. On this motion, neither waiver nor section 1 were argued. Therefore, the Charter analysis will proceed on the basis that the collective agreement is subject to subsection 15(1).
CHARTER ANALYSIS
Framework
Subsection 15(1) of the Charter provides:
| 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. |
To determine whether subsection 15(1) has been breached, the Court must follow a two-step analysis, first articulated in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. First, the plaintiffs must show that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the plaintiffs and others, based on personal characteristics of the plaintiffs or characteristics of a group to which the plaintiffs belong. Second, the Court must determine whether the distinction can be said to result in "discrimination". To show discrimination, it must be ascertained that the denial of equality rests upon one of the enumerated grounds in subsection 15(1) or an analogous ground.1
As regards the second step, there may be situations where distinctions made on enumerated or analogous grounds are non-discriminatory. For example, where the distinction does not engage the purpose of subsection 15(1) -- that being, "to prevent the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstance," as stated by McLachlin J. in Miron v. Trudel, [1995] 2 S.C.R. 418 at 486-487 -- discrimination will not be found. Similarly, there may be cases where there is a distinction on an enumerated or analogous ground, but the distinction does not have the effect of imposing a real disadvantage in the social and political context of the claim: see Miron at 487. Cases where a distinction made on an enumerated or analogous ground that does not amount to discrimination will, however, be rare.
In the case at bar, the parties agree that the collective agreement makes a distinction between employees in the GLT group in Saskatchewan as compared to employees in the GLT group elsewhere in Canada, and that this distinction amounts to a denial of equal benefit of the law. At issue is whether this distinction is discriminatory.
The plaintiffs submit that their province of residence is a personal characteristic which is analogous to the enumerated grounds listed in subsection 15(1). In R v. Turpin, [1989] 1 S.C.R. 1296, Wilson J., while finding that an individual's province of residence did not form the basis of the claim before her, left open the possibility that in some circumstances it could be a personal characteristic constituting a ground of discrimination.
Turpin thus offers the possibility of broadening the grounds for a finding of discrimination under subsection 15(1) to include province of residence. However, the observations of Wilson J. in Turpin signal that great care must be taken to maintain the stability and purpose of subsection 15(1) in making any actual inclusion. In Turpin, the argument was that persons charged with murder could elect trial by judge alone in Alberta, whereas they did not have the same opportunity in any other province. Wilson J. found that this was insufficient to constitute an analogous ground under subsection 15(1). Therefore, while Turpin offers the possibility of including province of residence as an analogous ground, clearly it will not be a ground in all circumstances.2
ARGUMENTS IN THIS CASE
In the case before me, the plaintiffs have made submissions with respect to establishing province of residence as an analogous ground under subsection 15(1). These submissions follow along three general lines.
1. Plaintiffs' counsel directed this Court to several cases in which geographical location was the basis for striking down legislation under subsection 15(1) of the Charter: see Bank of Montreal v. Rolseth (1986), 66 A.R. 381 (Q.B.), Rafael v. Allison (1987), 84 A.R. 328 (Q.B.) and Canadian Imperial Bank of Commerce v. Chan (1992), 130 A.R. 67 (Q.B.). Bank of Montreal v. Rolseth and Rafael v. Allison were decided before the Supreme Court of Canada developed the Andrews and Turpin approach to the subsection 15(1) analysis, and therefore I have not found these older authorities to be of assistance. Although Canadian Imperial Bank of Commerce v. Chan was decided more recently, it relies on the older authorities.
2. The plaintiffs also relied on Dale Gibson, The Law of the Charter: Equality Rights (Toronto: Carswell, 1990) wherein he explains that an individual's province of residence may be an immutable characteristic in the sense that it may only be changeable at an unacceptable cost. Professor Gibson states at pages 159 and 160:
| Because of the powerful deterrents to migration that so frequently exist in the real world, a person's place of residence is for many an "immutable" characteristic in the sense that Justice La Forest appears to have used the expression in Andrews. In many cases it is little less so than citizenship. |
| . . . |
| If discrimination based on citizenship is sufficiently "personal" to be prohibited by section 15, as the Supreme Court of Canada unanimously held it to be in Andrews, discrimination based on the fact that a person lives in the Yukon or Newfoundland must be equally so. |
While Professor Gibson makes out an innovative argument, comparing province of residence to citizenship, the Supreme Court has said only that province of residence may be an analogous ground, depending upon the way in which it is used in the law being challenged. A claim that does not raise the question of human dignity and freedom would clearly fail to connect with the observations of McLachlin J. in Miron where she identifies the principle underlying the indicia of analogous grounds under 15(1) at page 497:
| [...] while discriminatory group markers often involve immutable characteristics, they do not necessarily do so. Religion, an enumerated ground, is not immutable. Nor is citizenship, recognized in Andrews; nor province of residence, considered in Turpin. All these and more may be indicators of analogous grounds, but the unifying principle is larger: the avoidance of stereotypical reasoning and the creation of legal distinctions which violate the dignity and freedom of the individual, on the basis of some preconceived perception about the attributed characteristics of a group rather than the true capacity, worth or circumstances of the individual. |
Only if province of residence is used in a manner giving rise to questions of a violation of the dignity and freedom of the individual, may it be akin to discrimination on account of national origin. With respect to the case before me, I find it difficult to think that a challenge involving a provincial disparity in bargained rates of pay would, without some further evidence, raise a question of a violation of human dignity or freedom. The way province of residence is used in respect to the law under challenge (the collective agreement) might raise questions about differentials in bargaining power between persons in the GLT group in Saskatchewan and persons in the GLT group elsewhere in Canada. However, it is not, without some further evidence, suggestive of any violation of human dignity and freedom.
3. In keeping with the language of Miron, the plaintiffs also submit that, even if one's province of residence is not always a personal characteristic amounting to discrimination, i.e. that it is not an immutable characteristic, province of residence should in this case be considered an analogous ground. As will be seen, this argument is related to the second argument above. The argument here is that the lower rate of pay for employees in the GLT group in Saskatchewan is arbitrary and results from the application of a stereotype that residents of that province are presumed to have a lower cost of living than residents of other provinces, a presumption that has not been proven. In the absence of evidence justifying the lower rates of pay, the plaintiffs' argument is that the differential in rates of pay affects the freedom of GLT members in Saskatchewan.
Notwithstanding that the argument is couched in terms of an arbitrary stereotype, the crux of the plaintiffs' claim is purely economic. There is only a bald assertion in a supporting affidavit that the differential wage rates are arbitrary and not justified on any rational basis. The plaintiffs did not bring forth evidence that their rate of pay was in any way based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Nor is there any indication of discrimination based upon the indicia of analogous grounds set out by McLachlin J. in Miron. There is no evidence that the GLT group has suffered persistent disadvantage independent of the provisions of the collective agreement under scrutiny. There is no history of prejudice. There is no evidence of lack of political power or social disadvantage. In short, there is no evidence before me to indicate that the dignity and freedom of the plaintiffs has been violated by the lower rates of pay applicable to the GLT group in Saskatchewan under the collective agreement.
Therefore, I have before me a claim under subsection 15(1) which is based on an economic disparity without any evidence of any further basis for a finding of discrimination. The Supreme Court has taken a clear position with respect to economic interests. As observed by McIntyre J. in Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at page 412:
| It is also to be observed that the Charter, with the possible exception of s. 6(2)(b) (right to earn a livelihood in any province) and s. 6(4), does not concern itself with economic rights. |
I must conclude, therefore, that the plaintiffs have provided no basis for me to find that province of residence should be included in this case as an analogous ground for a finding of discrimination under subsection 15(1). I arrive at this conclusion also in light of the signal in Turpin that the requirements are strenuous for including province of residence as an analogous ground. Even if the Charter did concern itself with economic interests, it is difficult to think that different rates of pay among provinces, which gives rise to an economic question, could justify province of residence being considered as an analogous ground when the opportunity for election of trial by judge alone on a murder charge, which goes to a liberty interest, could not.
CONCLUSION
While the possibility remains open to include an individual's province of residence as an analogous ground that may give rise to a finding of discrimination, the case at bar provides me with no basis for such inclusion. I cannot conclude, therefore, that the plaintiffs have a genuine issue for trial. Although the parties have agreed that there is a difference in rates of pay between the GLT group in Saskatchewan and the GLT group in other provinces, there is no evidence that this difference amounts to discrimination. Given this conclusion, there is no genuine issue for trial.
The defendant's motion for summary judgment is allowed. There shall be judgment for the defendant with costs.
"Marshall E. Rothstein"
J U D G E
TORONTO, ONTARIO
SEPTEMBER 18, 1996
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1078-91
STYLE OF CAUSE: VINCENT WONG, ET AL
- and -
HER MAJESTY THE QUEEN
DATE OF HEARING: JUNE 24, 1996
PLACE OF HEARING: REGINA, SASKATCHEWAN
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: SEPTEMBER 18, 1996
APPEARANCES:
Mr. Gary L. Bainbridge
For the Plaintiffs
Ms. Myra J. Yuzak
For the Defendant
SOLICITORS OF RECORD:
Woloshyn Mattison
200 Saskatchewan Place
1870 Albert Street
Saskatoon, Saskatchewan
S4P 4B7
For the Plaintiffs
Ms. Myra J. Yuzak
Department of Justice
7th Floor
229-4th Avenue South
Saskatoon, Saskatchewan
S7K 4K3
For the Defendant
FEDERAL COURT OF CANADA
Court No.: T-1078-91
Between:
VINCENT WONG, ET AL
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
__________________
1 Once the plaintiff satisfies the Court of discrimination under subsection 15(1), the burden shifts to the state to show that the discrimination is demonstrably justified and in a free and democratic society under section 1 of the Charter. This involves demonstrating the rationality and reasonableness of the discrimination. These matters are not addressed here as the defendant has restricted the motion to the question of whether or not there is discrimination under subsection 15(1).
2 In terms of application, difficulties can arise with grounds that are deemed analogous in some circumstances but not in others. These difficulties have been recognized by Beaudoin and Mendes, The Canadian Charter of Rights and Freedoms , 3rd ed., (Toronto, Carswell, 1996) . At page 14-64, they state:
The Court provides no standards for determining why a ground would be analogous in some circumstances and not others, and a case by case determination seems inconsistent with the earlier statement in the same judgment that the determination whether a ground is analogous should be made not in relation to the law under challenge, but in "the context of the place of the group in the entire social, political and legal fabric of our society". A case by case determination of the relevancy of the ground to the purposes of a particular statute also risks falling back into the "similarly situated" test rejected in Andrews. In addition, it comes close to making the status of the ground a question of fact that would have to be argued and proved in every case. We do not mean to suggest that the analogous grounds in the year 2010 might not differ from those in 1995, as social and political conditions change. However, we do suggest that the conclusion that a ground is analogous should form a binding precedent to be reassessed only upon evidence that the purposes of section 15 are no longer served.