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JUDGE ABELLA IGNORES THE LAW - AGAIN

In a justice system with integrity, a judge who has a conflict of interest or a personal bias in a particular case immediately recuses him/herself i.e., withdraws from the case. This is necessary because a bias toward one side of an argument creates a denial of justice in that it precludes a fair hearing. This practice of withdrawing from a case in which a judge has a conflict of interest, is not only common sense, but also is the decent and right thing to do.

This apparently is not the situation in Canada. In our twisted, manipulative and interventionist judicial system, it seems that a judge holding a specific bias, favourable to one side, is regarded as contributing a unique "understanding" or "insight" to the case and, therefore, his/her involvement in the case is regarded as an advantage. This is apparently what occurred in a decision handed down on January 26, 2006, by the Supreme Court of Canada in Air Canada vs CUPE (Canadian Union of Public Employees).

This case dealt with the issue of whether Air Canada discriminated against flight attendants, a female-dominated group, by paying them differently for work supposedly of "equal value" to that performed by mechanics and pilots, who are predominately male.

This whole case rested on a provision (s.11) in the Federal Human Rights Act, which provides that it is discriminatory for employers to pay different wages to men and women in the same establishment who are performing work of equal value. This provision was inserted into the Act in 1977. It was based on the ludicrous feminist theory that mischief arises when there is a wage gap between disadvantaged women, who are in gender segregated employment and are paid lower wages due to their work being undervalued, in comparison to the wages paid to men in a male dominated group. This "discrimination" supposedly occurs even though the males may be performing quite different jobs from those of the female group. That is, the issue does not deal with a failure to provide equal pay for equal work, (the law since 1956) but rather the mischief lies in the failure to recognize that the female work is of "equal" value to the work performed by men and, therefore, wages must be the same for both groups.

Determining the "value" of differing jobs is not easy since it is invariably a subjective determination. But, no matter. Although this feminist concept is ridiculous, it was enshrined in the law so it must be complied with. The issue in this case arose in regard to the wages paid flight attendants, (a female dominated group) and pilots and mechanics, (male dominated jobs) in which it was argued that their respective work was of equal value.

Not to denigrate the important work of flight attendants, but, it seems apparent that serving meals, distributing head sets and in general making passengers comfortable, although important, is considerably different from the training, skill, and responsibilities of airline pilots and mechanics upon whom the lives and safety of the passengers totally depend.

The question before the court in this case was whether the jobs in question could be properly compared on the basis that these employees performed work of equal value and were in the same employment establishment.

S.10 of the Guidelines adopted in 1986 to assist in the interpretation of equal value stated that "employees of an establishment include all employees subject to a "common personnel and wage policy".

In this case, the three categories of workers had separate and distinctive collective agreements and branch-specific manuals that applied to their specific bargaining units. That is, the guidelines indicated that the different groups were not subject to a "common personnel and wage policy" as set out in the Guidelines.

The Federal Human Rights Tribunal had ruled that the wages of flight attendants could not be properly compared to those of the two other groups since "they did not work for the same establishment" based on the fact of their separate collective agreements etc. The Federal Court - Trial Division agreed. However, the Federal Court of Appeal ruled that the three groups were all part of a single, integrated business and their wages should be compared on the basis of their equal "value". The Federal Court of Appeal then referred the case back to the Human Rights Commission to commence comparing the "value" of the three separate occupations.

On appeal to the Supreme Court of Canada, the latter court agreed with the Federal Court of Appeal. In a decision, co-written by feminist Justice Rosalie Abella, (her first since her controversial appointment to the court in 2004), she concluded that the three groups were working for the same "establishment" and, therefore, their jobs should be compared for their value to determine whether their wage gap was caused by discrimination.

The Feminist Career of Judge Abella

It can be fairly stated that Madam Justice Abella has been a feminist ideologue throughout her legal career. She scampered up the ladder of success, not so much because of merit or legal ability (she actually practiced law for only a few years), but, rather happily for her, because of a combination of factors, such as her political connections, politically correct views, gender and her minority status religious faith. With these assets she could do no wrong. In the course of her career Madam Justice Abella has fancied herself as a latter day Joan of Arc, using her appointed positions to whack away at perceived injustices, frequently apparent only to herself. She has laboured to change the law in different areas, not according to established principles and precedents rooted in the law, but rather in accordance with her own narrow perspective on feminism and human rights. A 1998 decision, in the Ontario Court of Appeal Rosenberg case, she concluded that homosexual partners were entitled to survivor benefits from their partner's pension plans. She also stated in that decision:

…elected governments may wait for changing attitudes in order to preserve public confidence and credibility. Both public confidence and institutional credibility argue in favour of courts being free to make independent judgments notwithstanding those same attitudes.

Further, she stated in a public speech in October 2000, "the judiciary is accountable less to the public's opinions and more to the public's interest", and that the judges "serve only justice".

She obviously followed her own advice in the Air Canada case. She concluded that, in her judgment, the provision on equal value (S. 11 of the Human rights Act) indicated that the wages of the employees in the case could be compared for purposes of determining whether their work was of equal value. In reaching this decision, Judge Abella did not look to the current Guidelines for an interpretation about whether the employees worked for the same "establishment". Instead she turned to previous guidelines, no longer in effect, which better suited her purposes.

Thus, Judge Abella (with the remaining six members of the Court obviously bowing to her superior understanding of the issue), flew in the face of the actual law as written on the current regulations, and, relegated the collective agreements of the employees to secondary status in order to create a new definition of a regulated establishment. This creative writing has permitted the trumping of supposed sexual discrimination over the written law. Best of all for Justice Abella, this case gave her the opportunity to write into law something she could not do in 1984 when she served as the sole commissioner on the Royal Commission on Equality in Employment. In that Commission's report, Judge Abella had recommended that the Human Rights Act be amended to extend or broaden the job comparisons of equal value to outside those groups which were employed in the same establishment. With this decision, she has done just that.

There is something very wrong with our justice system when a judge can sit on a court to "read into" the law one of her own previous recommendations. What a blatant lack of objectivity at the highest court in the land! It must be very satisfying for Madam Justice Abella to do so - but it most certainly denigrates the integrity of Canada's justice system.

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