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Canadian Human Rights Commission can proceed with pay equity complaint

January 26, 2006

Do flight attendants and pilots work in the same “establishment”? The Supreme Court says “Yes”

In Canada (Human Rights Commission) v. Air Canada, the Supreme Court of Canada held that the Canadian Human Rights Commission can proceed with an investigation into a pay equity complaint brought by Air Canada’s flight attendants.


The union representing Air Canada’s flight attendants filed a pay equity complaint under the Canadian Human Rights Act. It alleged that Air Canada had discriminated against the predominantly female flight attendants by paying them less than the predominantly male pilots and mechanical personnel for work of equal value.

The case dragged on for 15 years, as the parties fought over a preliminary issue – namely, whether flight attendants, pilots and mechanical personnel work in the same “establishment” within the meaning of s. 11 of the Act. Section 11 provides that it is discriminatory practice for an employer to establish differences in wages between male and female employees in the same “establishment” who are performing work of equal value. Section 10 of the Equal Wages Guidelines, adopted under the Act, states that employees of an establishment include all employees subject to a “common personnel and wage policy.”

The Canadian Human Rights Tribunal held that the three employee groups were not part of the same “establishment” and therefore the complaint could not proceed. It focused on the differences between the collective agreements that applied to each of the three bargaining units.

The Tribunal’s decision was upheld on judicial review, but was overturned by the Federal Court of Appeal. Air Canada appealed to the Supreme Court of Canada.

The Supreme Court’s decision

The Supreme Court dismissed Air Canada’s appeal. It noted that a broad approach must be taken to the interpretation of human rights statutes. It held that the definition of “establishment” in s. 10 of the Guidelines should not be “viewed and applied as if it were an exhaustive definition”. Rather, the definition should be seen as a “complementary provision which provides additional content and context for the application of the notion of ‘establishment’”.

The search for a “common personnel and wage policy”, the Court held, is simply a factual inquiry as to whether there is a common set of principles or a general approach taken by an employer to its employee/employer relationships, including collective bargaining. It is not appropriate to focus, as the Tribunal did, on the fine details of each collective agreement. The terms of collective agreements and employments contracts will necessarily vary with the particular bargaining unit or employee. To use such differences as the focus of the inquiry would effectively equate “establishment” with “bargaining unit”. This would undermine the purpose of s. 11, which is to determine whether wages paid to women reflect an under-valuation based on systemic discrimination resulting not only in occupational segregation, but also in diminished bargaining strength, and likely diminished wages and benefits”. Air Canada’s interpretive approach, the Court held, would turn collective bargaining into a tool to consolidate discriminatory practices.

The Court also admonished Air Canada for its resistance to this pragmatic approach for almost 15 years, “creating enormous expense for itself and the public, and intolerable delay in wage equity, should the flight attendants ultimately succeed.”

The Court agreed with the Federal Court of Appeal’s conclusion that the three groups belong to the same establishment, since Air Canada took a common approach to collective bargaining, the administration of labour contracts, its methods of communications with unions and employees, and its common negotiating strategies and concerns. The Court remitted the matter to the Commission to continue its investigation.

Read the decision.

Peter Engelmann represented the Communications, Energy and Paperworkers Union of Canada, which intervened in support of CUPE.


Peter Engelmann

Practice Areas

Appeals & Judicial Review, Pay Equity