Seeking a Balance

Good news for Equal Pay Fight - Library of Parliament

Constance Auclair, Marie-France Marleau and Suzanne Whitmore v. Library of Parliament

 Court File No.:  T-683-01

 The Federal Court Trial Division has allowed the PSAC’s application for judicial review against the adjudication decision of Joseph W. Potter rendered under the Parliamentary Employment and Staff Relations Act.

 By his decision, the Adjudicator found that a “special pay adjustment” by Treasury Board to public service employees was not an “equal pay adjustment” with respect to the pay equity complaints.  As such, he determined that employees of the Library of Parliament were not entitled to the payment pursuant to an MOU between PSAC and the Library.

 As you recall, the agreement provided for the matching of current and future payments ‘based on equal pay’ to groups of Library employees and, in exchange, the PSAC agreed to withdraw its pay equity complaints against the Library.

 Justice Kelen of the Federal Court determined that Adjudicator Potter’s decision was patently unreasonable and ordered that the grievances be referred back to adjudication with the direction that the grievances be allowed.

 Of interest is the fact that the Court concluded that an adverse inference could be drawn from Treasury Board’s failure to call any evidence before the Adjudicator which would rebut the documentary evidence tendered by the PSAC, and the testimony provided by Margaret Jaekl, indicating that the special pay adjustments were meant to apply to the employees in question.  Indeed, the Court strongly states that:

 “I am satisfied that the documentary and viva voce evidence established a prima facie case that the SPA Agreement was with respect to pay equity.  At that point, the onus shifted to the respondent to call evidence to the contrary, which the respondent undoubtedly would have done if the respondent had any evidence to rebut.”

 In summary, the Court found that Adjudicator Potter had, in a patently unreasonable manner, discounted or rejected the uncontested documentary and viva voce evidence presented by the PSAC in support of the grievances.

 The Court also awarded costs to the PSAC.