Bell Canada (Applicant)
v.
Earl E. Palmer (Respondent)
Trial Division, Heald J.—Toronto, June 11;
Ottawa, June 19, 1973.
Statutes—Labour relations—Civil rights—Statute provid
ing equal pay for women—Provision for complaints to be
referred to Fair Wage Officer and Referee—Repeal of provi-
sion—Complaint pending at time of repeal—Whether rights
of complainant preserved—Female Employees Equal Pay
Act, 1956, c. 38—Canada Labour (Standards) Code, R.S.C.
1970, c. L-1, am. 1970-72, c. 50, secs. 8, 23—Interpretation
Act, R.S.C. 1970, c. I-23, s. 35(c) and (e).
The Female Employees Equal Pay Act, 1956, c. 38, pro
vided that any person claiming to be aggrieved because of
an alleged violation of the Act could complain to the Minis
ter who might refer the matter to the Fair Wage Officer and,
if the matter could not be settled, to a Referee. That Act was
repealed effective July 1, 1971, by 1970-71-72, c. 50, s. 23
(amending the Canada Labour (Standards) Code) which
statute by section 8 prohibited wage differentials between
male and female employees but did not provide for the
reference of disputes to a Fair Wage Officer and a Referee.
On November 26, 1970, two women employees of Bell
Canada Ltd. complained of a grievance. Their complaint
was referred to a Fair Wage Officer who was unable to
settle the matter. On February 23, 1973, the Minister
referred the complaint to a referee. Bell Canada applied for
a writ of prohibition.
Held, the writ must be refused. Having regard to section
35(c) and (e) of the Interpretation Act, R.S.C. 1970, c. I-23,
the rights acquired by the complainants under the repealed
statute were preserved.
Gell v. White [1922] 2 K.B. 422, followed; Regina v.
Coles [1970] 1 O.R. 570, distinguished.
APPLICATION for writ of prohibition.
COUNSEL:
B. M. Paulin, Q.C., and G. C. Clermont for
applicant.
M.P. Hyndman, Q.C., and D. Arthurs for E.
Kennedy and P. Harris.
N. Chalmers, Q.C., for Deputy Attorney
General of Canada.
SOLICITORS:
White, Bristol and Beck, Toronto, for
applicant.
Blackwell, Law, Treadgold and Armstrong,
Toronto, for E. Kennedy and P. Harris.
Deputy Attorney General of Canada for the
Crown.
HEALD J.—This is an application for a writ of
prohibition in which the applicant asks that one
Earl E. Palmer, the respondent herein, be pro
hibited from taking any proceedings as a
Referee appointed under the provisions of sec
tion 6 of the Female Employees Equal Pay Act,
S.C. 1956, c. 38 and more particularly from
conducting a hearing into the complaints of
Elizabeth Kennedy and Patricia Harris against
the applicant under said Act.
On November 26, 1970, Elizabeth Kennedy
and Patricia Harris (hereafter Kennedy and
Harris) made a complaint that they were
aggrieved under the provisions of said Act. The
relevant portions of said statute are sections 4
and 6(1) to (7) which read as follows:
4. (1) No employer shall employ a female employee for
any work at a rate of pay that is less than the rate of pay at
which a male employee is employed by that employer for
identical or substantially identical work.
(2) Subject to subsection (3), for the purposes of subsec
tion (1), work for which a female employee is employed and
work for which a male employee is employed shall be
deemed to be identical or substantially identical if the job,
duties or services the employees are called upon to perform
are identical or substantially identical.
(3) Payment to a female employee at a rate of pay less
than the rate of pay at which a male employee is employed
does not constitute a failure to comply with this section, if
the difference between the rates of pay is based on length of
service or seniority, on location or geographical area of
employment or on any other factor other than sex, and, in
the opinion of the Fair Wage Officer, Referee, court, judge
or magistrate, the factor on which the difference is based
would normally justify such difference in rates of pay.
6. (1) Any person claiming to be aggrieved because of an
alleged violation of any of the provisions of this Act may
make a complaint in writing to the Minister and the Minister
may instruct a Fair Wage Officer to inquire into the com
plaint and endeavour to effect a settlement of the matters
complained of.
(2) If the Fair Wage Officer is unable to effect a settle
ment of the matters complained of, he shall make a report to
the Minister setting forth the facts and his recommendation
thereon. -
(3) The Minister may
(a) refer the complaint to a Referee to be appointed by the
Minister, or
(b) decline to refer the complaint to a Referee if he
considers it to be without merit.
(4) Where the Minister has referred a complaint to a
Referee the Referee shall
(a) inquire into the matters referred to him,
(b) give full opportunity to all parties to present evidence
and make representations,
(c) decide whether or not the complaint is supported by
the evidence, and
(d) make whatever order he considers necessary to carry
his decision into effect, which may include payment of the
remuneration or additional remuneration that, during a
period not exceeding six months immediately preceding
the date of the complaint, would have accrued to the
employee if the employer had complied with this Act.
(5) In considering a complaint under this Act a Fair Wage
Officer or a Referee may enter the premises where any
work, business or undertaking relating to the complaint is
carried on and may inspect payroll and other employment
records; and the owner or person in charge of such premises
and every person found therein shall give the Fair Wage
Officer or Referee all reasonable assistance in his power and
furnish the Fair Wage Officer or Referee with such informa
tion as he may reasonably require.
(6) A Referee to whom a complaint has been referred has
all the powers of a Conciliation Board under section 33 of
the Industrial Relations and Disputes Investigation Act.
(7) Every person in respect of whom an order is made
under this section shall comply with the order.
Pursuant to the provisions of section 6
(supra), the Minister of Labour instructed a Fair
Wage Officer to inquire into said complaint and
to try to effect a settlement of the matters
complained of. There were meetings between
senior officials of the applicant and various
officials of the Federal Department of Labour
on February 25, 1971, March 30, 1971, August
6, 1971, May 18, 1972 and November 15, 1972.
However, apparently the Fair Wage Officer was
unable to effect settlement and on February 23,
1973, under the provisions of section 6(3)(a) of
said Act, the Minister of Labour referred said
complaint to the respondent, the Associate
Dean of Law, University of Western Ontario as
Referee.
The said Female Employees Equal Pay Act
was repealed, effective July 1, 1971 by S.C.
1970-71-72, c. 50, s. 23. Section 8 of the same
statute makes new provisions concerning equal
wages for female employees and reads as
follows:
14A. (1) No employer shall establish or maintain differ
ences in wages between male and female employees,
employed in the same industrial establishment, who are
performing, under the same or similar working conditions,
the same or similar work on jobs requiring the same or
similar skill, effort and responsibility.
(2) Payment to male and female employees of different
wages does not constitute a violation of subsection (1) if the
difference is based on any factor or factors other than sex
that justify such a difference.
(3) No employer shall reduce the wages of an employee
in order to comply with subsection (1).
A comparison of the provisions in force after
July 1, 1971 with those in force prior thereto
makes it obvious that the Enforcement Proce
dure provisions of section 6 of the old Act have
disappeared and are not present in the new
legislation.
Counsel for the applicant submits that the
respondent was appointed by the Minister as
Referee under the authority of the old Act at a
time when the old Act had been repealed, that
there was no corresponding section of the new
Act authorizing such appointment, that accord
ingly the Minister had no authority to appoint
the respondent on February 23, 1973 and
because of said lack of jurisdiction, asks the
Court to prohibit the respondent from taking
any proceedings under said appointment.
Section 35 of the Interpretation Act, (R.S.C.
1970, c. I-23) is relevant in the circumstances of
this case. The pertinent portions thereof read as
follows:
35. Where an enactment is repealed in whole or in part,
the repeal does not
(c) affect any right, privilege, obligation or liability
acquired, accrued, accruing or incurred under the enact
ment so repealed;
(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment;
and an investigation, legal proceeding or remedy as
described in paragraph (e) may be instituted, continued or
enforced, and the penalty, forfeiture or punishment may be
imposed as if the enactment had not been so repealed.
In my view, at the time of the repeal, on July
1st, 1971, of the Female Employees Equal Pay
Act, Kennedy and Harris had acquired and
accrued to them rather substantial rights under
the provisions of said Act. They had the right to
the ongoing inquiry and investigation of the Fair
Wage Officer, the right to ask the Minister to
appoint a Referee under subsection (3) and if
the Minister did so appoint a Referee (as he
purported to do in this case), to the exercise, in
appropriate circumstances, by the Referee of
the very substantial powers given to the Referee
under said section 6.
Applicant's counsel submits that, since the
Minister's appointment of the Referee did not
take place until after the Act was repealed, no
one knew or could be sure, at date of repeal,
that the Minister would, in fact, appoint a
Referee, and that, therefore, Kennedy and
Harris cannot be said, at date of repeal, to have
had any "rights" of which they were deprived
by the repeal. I do not agree with this submis
sion. In my view, section 6 provided a code of
procedure for enforcement of the rights given to
female employees by section 4 of the Act. This
procedure was instituted or set in motion by the
complaint contemplated in section 6(1). In this
case, the complaint, lodged on November 26,
1970, set the section 6 procedure into motion
and it was ongoing on July 1, 1971, when the
Act was repealed and was not replaced by a
comparable procedure. These complainants had
done everything required of them to be done
well before July 1, 1971 so as to become en
titled to the procedures set out in section 6 of
the Act. I therefore have the view that para
graphs (c) and (e) of section 35 apply to the
facts of this case. These claimants had a right to
the investigation by the Fair Wage Officer, and
to his efforts in effecting a settlement of their
complaint, and, if he could not settle the com
plaint, to the appointment of a Referee at the
Minister's discretion, and, in such event, to the
exercise of the Referee's powers as set out in
the section.
In the English case of Gell v. White [1922] 2
K.B. 422, on similar facts involving similar
legislative provisions, the Court held that the
claimant in question had not lost the rights
acquired by him under the repealed Act. Appli
cant's counsel relied on the case of Regina v.
Coles [1970] 1 O.R. 570. However, the facts in
that case are different from the case at bar. That
case involved a charge under the Ontario
Securities Act. At the time the information was
sworn, the Act which was in force on the date
of the commission of the offence had been
repealed and replaced by a new Securities Act.
The difference between that factual situation
and the one at bar, is that in the Coles case
(supra), the prosecution was not launched
during what Mr. Justice Laskin describes as
"the natural life of the old Act". In this case,
the proceedings in question were launched
during the natural life of the old Act. I am
satisfied from a reading of the judgment of Mr.
Justice Laskin in the Coles case (supra) (par-
ticularly pages 573, 574 and 575 thereof) and
from a consideration of sections 35 and 36 of
the Interpretation Act that said sections operate
to validate the appointment of the respondent
by the Minister in this case and that he should
not be prohibited from proceeding in accord
ance with the provisions of section 6 of the
repealed Act.
The application is therefore dismissed. The
respondent was not represented on the motion.
However, the complainants Elizabeth Kennedy
and Patricia Harris were represented as was the
Attorney General of Canada. The Attorney
General of Canada will have costs of the motion
against the applicant if asked for. Since Ken-
nedy and Harris were represented by one coun
sel, they will have one set of costs of the motion
against the applicant also, if asked for.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.