The Canadian Human Rights Tribunal (“CHRT”) has issued its very first decision sitting in appeal of the federal Pay Equity Commissioner (“PEC”). In WestJet v Unifor et al, 2026 CHRT-PEA 1, the CHRT dismissed WestJet’s appeal of the PEC’s decision finding that it acted in bad faith in contravention of subsection 150(3) of the Pay Equity Act (“Act”).
The PEC’s decision was significant as it was the first finding of bad faith issued against an employer by the PEC under the Act. In her decision, the PEC found that WestJet had acted in bad faith by barring duly appointed members of the pay equity committee from participating in committee meetings after refusing to sign a non-disclosure agreement. While not subject of the appeal to the CHRT, the PEC also found that WestJet violated the Act when it continued working on foundational steps of the creation of the pay equity plan without the representatives of the bargaining agents.
Since this was the first appeal of a PEC decision brought under subsection 168(1) of the Act, the CHRT had to clarify the applicable standard of review. As an administrative tribunal reviewing the decision of another administrative tribunal, the applicable standard of review is derived from the statute. The Act itself does not indicate what standard must be applied, only that appeal is available. The CHRT therefore had to determine the PEC’s and CHRT’s functions as intended by Parliament.
The CHRT noted the expertise of the PEC in day-to-day technical pay equity matters and that applying a correctness standard when reviewing technical pay equity matters “would lead to delay and duplication in the appeal process”. The CHRT noted that a correctness standard would “assis[t] the PEC in developing pay equity jurisprudence that is consistent with the broader scheme of human rights law”, but that “[a]bsent some unsettled legal question, the Tribunal should afford some deference to the PEC on findings of fact and findings of mixed fact and law”. As such, it determined that a reasonableness standard would be best to streamline and expedite the pay equity process.
WestJet sought appeal of the PEC’s finding that it acted in bad faith arguing that the facts did not support such a conclusion. The CHRT found the PEC’s decision to be reasonable noting that the PEC properly analyzed the evidence before her and that her analysis was transparent, intelligible and justified. The CHRT also noted that the bad faith standard used by the PEC, first used in Public Service Alliance of Canada v Bank of Canada, 2024 PEC 29, was “settled pay equity jurisprudence”. This standard requires that the party alleging bad faith show ill-will or an intention to mislead or deceive.
The CHRT further adopted the Air Line Pilots Association’s (“ALPA”) argument that there were no legal questions in the appeal that would attract a correctness standard. It also reiterated that there need not be any overt evidence of bad faith to make such a finding. Like in cases of discrimination when no overt evidence is necessary, the PEC has to review the circumstances and draw cumulative conclusions, which the CHRT concluded she had.
The CHRT’s decision was substantial as it clarified the applicable standard of review when decisions of the PEC are appealed under the Act. In so doing, it upheld the PEC’s first decision finding an employer to have acted in bad faith under the Act. As a relatively new legislation and with more pay equity plans being developed and finalized, the PEC and the CHRT’s decisions are sure to be impactful and carefully considered by workplace parties.
Isabelle Roy-Nunn and Sarah-Claude L’Ecuyer successfully represented ALPA before the PEC and the CHRT.