A-122-73
Bell Canada (Appellant)
v.
Earl E. Palmer (Respondent)
Court of Appeal, Thurlow J., MacKay and
Bastin D.JJ.—Toronto, January 17 and 18,
1974.
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, s. 4(1)—Canada Labour (Standards) Code,
R.S.C. 1970, c. L-1, am. 1970-71-72, c. 50, secs. 8, 23—
Interpretation Act, R.S.C. 1970, c. I-23, s. 35(cXe).
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repealed effective July 1, 1971 by S.C. 1970-71-72, c. 50, s.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 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, upholding the judgment of the Trial Division, Heald
J. ([1973] F.C. 982) that 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 Fomplainants
under the repealed statute were preserved.
Director of Public Works v. Ho Po Sang [1961] A.C.
901, distinguished.
APPEAL.
COUNSEL:
B. M. Paulin, Q.C., for appellant.
No one appearing for respondent.
E. A. Bowie and G. R. Garton for Attorney
General of Canada.
M. P. Hyndman, Q.C., and D. Arthurs for
Elizabeth Kennedy and Patricia Harris.
SOLICITORS:
White, Bristol and Beck, Toronto, for
appellant.
E. E. Palmer, London, for respondent.
Deputy Attorney General of Canada for
Attorney General of Canada.
Blackwell, Law, Treadgold and Armstrong,
Toronto, for Elizabeth Kennedy and Patricia
Harris.
THURLOW J. (orally)—This is an appeal from
a judgment of the Trial Division, [[1973] F.C.
982] which dismissed the appellant's application
for a writ of prohibition to prevent the respond
ent from taking proceedings as a Referee and
more particularly from conducting a hearing
into complaints made by Elizabeth Kennedy
and Patricia Harris against the appellant under
provisions of the Female Employees Equal Pay
Act.'
That Act provided by section 4(1) that:
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.
Two methods of procedure for enforcing this
provision were provided by the statute. The first
was in section 6, subsections (1), (2), (3), (4),
(6), (7) and (11) of which, read as follows:
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,
S. of C. 1956, c. 38.
(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.
(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.
(11) Nothing in this section operates to restrict the right
of any aggrieved person to initiate proceedings under any
other provision of this Act before a court, judge or magis
trate against any person for an alleged contravention of this
Act, except that where a complaint has been made under
this section that an employer has failed to comply with
section 4 or 5, and the complaint has been referred to a
Referee appointed by the Minister, the employer shall not,
in respect of the same matter, be convicted under section 7
for failure to comply with section 4 or 5, as the case may be.
The other procedure was provided for as fol
lows in sections 7 and 8:
7. Every person who does anything prohibited by this Act
or who refuses or neglects to do anything required by this
Act is guilty of an offence and is liable on summary
conviction
(a) if an individual, to a fine not exceeding one hundred
dollars, and
(b) if a corporation, to a fine not exceeding five hundred
dollars.
8. (1) Where an employer is convicted for failure to
comply with section 4 or 5 in respect of any employee, the
convicting court, in addition to any other penalty, may order
the employer to pay to the employee the remuneration or
additional remuneration that, during a period not exceeding
six months immediately preceding the date the prosecution
was instituted, would have accrued to the employee if the
employer had complied with those sections.
(2) Where an employer is convicted for failure to comply
with an order under section 6 for the payment to an
employee of an amount as remuneration or additional remu
neration, the convicting court, in addition to any other
penalty, may order the employer to pay such amount to the
employee.
The complaint of Elizabeth Kennedy and
Patricia Harris against the appellant was made
on November 26, 1970 and invoked the proce
dure of section 6. Thereafter meetings relating
to the complaint took place between officials of
the Department of Labour and officials of the
appellant on a number of occasions in 1971 and
1972 but the matters complained of were not
settled and on February 23, 1973 the Minister
appointed the respondent as a Referee to carry
out in relation to the complaint the functions set
out in section 6(4) of the Act.
In the meantime, however, on July 1st, 1971
the Act had been repealed by section 23 of S. of
C. 1970-71-72, chapter 50. By section 8 of the
repealing Act the subject of equal pay for
female employees was dealt with in somewhat
different terms 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.
and the procedure for enforcing this provision
was limited to that of a prosecution by summary
conviction upon which a fine of one thousand
dollars might be imposed. There was no provi
sion for ordering payment of any difference in
pay for any period to an aggrieved employee
and nothing resembling the procedure under
section 6 of the repealed Act was present in the
repealing statute.
In these circumstances on the respondent
being appointed as Referee under the repealed
Act the appellant applied for prohibition to pre
vent him from acting.
The learned trial judge held that substantial
rights had accrued to the complainants under
the old Act at the time of its repeal and that
section 35, paragraphs (c) and (e) of the Inter
pretation Act, R.S.C. 1970, c. I-23 applied to
preserve and continue such rights under that
Act notwithstanding the appeal. I agree with this
view. In my opinion the effect of section 4 of
the Female Employees Equal Pay Act which
prohibited the employer to whom it applied
from employing a female employee for any
work at a rate of pay lower than that for a male
employee employed for like work, when com
bined with the provisions for its enforcement,
which included the provisions for enforcement
of payment by the employer of the difference,
was to create in the female employee the right
to pay as provided by the Act at the appropriate
rate. And the employer was under a correspond
ing obligation to pay the employee accordingly.
Moreover, incidental to this right of the female
employee and the obligation of the employer
was a right of the female employee to have the
procedure for the enforcement of her substan
tive right to equal pay and the employer's corre
sponding obligation carried to its conclusion.
In these circumstances on the repeal of the
Female Employees Equal Pay Act, in my opin
ion, section 35 of the Interpretation Act applied
to preserve both the substantive right and obli
gation and the procedure to enforce them. It
provides that:
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.
It was submitted by the appellant that the
areas of operation of sections 35 and 36 of the
Interpretation Act are mutually exclusive, that
section 35 applies only when there is a simple
repeal and that here there was a repeal and
substitution and therefore section 36 was appli
cable and not section 35. Counsel was unable to
give us any authority for this proposition and
with respect I do not agree with it. There was in
my view a repeal to which section 35 applies
and has effect save to the extent that a substitu-
tion for the repealed enactment may bring into
play the provisions of section 36. Here the part
of section 36 relied on was paragraph (c) which
provides that:
36. Where an enactment (in this section called the "form-
er enactment') is repealed and another enactment (in this
section called the "new enactment") is substituted therefor,
(c) every proceeding taken under the former enactment
shall be taken up and continued under and in conformity
with the new enactment so far as it may be done consist
ently with the new enactment;
The effect of this, as I read it, if it has any
application to the present situation, though I do
not think that it has, is that the proceeding
already commenced under the repealed enact
ment is to be carried on in conformity with the
new enactment so far as it may be done consist
ently with the new enactment, but as there is no
like proceeding provided for by the new enact
ment there is no alteration to the procedure
required to carry it on consistently with the new
enactment.
Counsel for the appellant also submitted that
the complainants had no accrued right at the
time of the repeal and he relied on the judgment
of the Privy Council in Director of Public Works
v. Ho Po Sang 2 . In that case at the time of the
repeal of certain statutory provisions, proceed
ings initiated pursuant to them were pending for
consideration by the Governor in Council of
Hong Kong. Under the statutory provisions the
Governor in Council had the authority, in his
discretion, to award the respondent a rebuilding
certificate which would have had certain impor
tant consequences in obtaining vacant posses
sion of property without paying compensation
to the tenants who would be obliged to vacate.
In delivering the judgment of the Privy Council
Lord Morris of Borth-y-Gest dealt first with
whether there was an accrued right to a rebuild
ing certificate and held there was not and he
then went on to consider whether there was at
the time of the repeal an accrued right to have
the matter considered and dealt with according
to the law as it then was. With respect to the
first point he said at page 920:
2 [1961] A.C. 901.
In the present case the position on April 9, 1957, was that
the lessee did not and could not know whether he would or
would not be given a rebuilding certificate. Had there been
no repeal, the petitions and cross-petition would in due
course have been taken into consideration by the Governor
in Council. Thereafter there would have been an exercise of
discretion.
The Governor would have directed either that a certificate
be given or be not given, and the decision of the Governor in
Council would have been final. In these circumstances their
Lordships conclude that it could not properly be said that on
April 9 the lessee had an accrued right to be given a
rebuilding certificate. It follows that he had no accrued right
to vacant possession of the premises. It was said that there
were accrued rights to a certificate, and consequently to
possession, subject only to the risk that these rights might
be defeated, and it was said that in the events that happened
the rights were not defeated. In their Lordships' view such
an approach is not warranted by the facts. On April 9 the
lessee had no right. He had no more that a hope that the
Governor in Council would give a favourable decision. So
the first submission fails.
Here in my opinion the situation is different.
At the material time the complainants as female
employees of the appellant in my view had an
accrued right to equal pay as provided by the
statute which is what they sought to enforce and
by making their complaint in writing to the
Minister they had taken the only step in the
procedure required to be taken by them to enti
tle them to have the procedure of section 6
carried to its conclusion.
Lord Morris then proceeded to consider the
second point in the course of which he said: 3
It is to be observed that under section 10(e) a repeal is not
to affect any investigation, legal proceeding or remedy "in
respect of any such right." The right referred to is the right
mentioned in section 10(c), i.e., a right acquired or accrued
under a repealed enactment. This part of the provisions in
paragraph (e) of section 10 does not and cannot operate
unless there is a right as contemplated in paragraph (c). It
may be, therefore, that under some repealed enactment a
right has been given but that in respect of it some investiga
tion or legal proceeding is necessary. The right is then
unaffected and preserved. It will be preserved even if a
process of quantification is necessary. But there is a mani
fest distinction between an investigation in respect of a right
and an investigation which is to decide whether some right
should or should not be given. Upon a repeal the former is
preserved by the Interpretation Act. The latter is not. Their
Lordships agree with the observation of Blair-Kerr J. that:
3 Page 922.
"It is one thing to invoke a law for the adjudication of rights
which have already accrued prior to the repeal of that law; it
is quite another matter to say that, irrespective of whether
any rights exist at the date of the repeal, if any procedural
step is taken prior to the repeal, then, even after the repeal
the applicant is entitled to have that procedure continued in
order to determine whether he shall be given a right which
he did not have when the procedure was set in motion.
In my view there is nothing in this which
supports the position of the appellant and much
that supports the opposite conclusion. Where
there is no accrued right under paragraph (c) of
section 35 there is, as I see it, no right under
paragraph (e) to the procedure in order to create
a right. But when there is, as I think there is
here, an accrued right within the meaning of
paragraph (c), the party entitled thereto also has
the right to have the procedure carried to a
conclusion as provided by paragraph (e) for the
purpose of enforcing the accrued right. With
respect to the period prior to the repeal that
procedure might I think have been invoked,
within limits, even after the repeal, 4 but here the
procedure was invoked before the repeal and
the point does not arise.
The appeal therefore fails and should be
dismissed.
The complainants and the Attorney General
of Canada are entitled to costs.
* * *
MACKAY and BASTIN D.E. concurred.
4 See Free Lanka Insurance Co. Ltd. v. Ranasinghe
[1964] A.C. 541, and Regina v. Coles [1970] 1 O.R. 570.
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.