Janet Slone Taylor

The Pay Equity Hearings Tribunal addressed four preliminary matters in a dispute between two employees and the Liquor Control Board of Ontario (LCBO).

The LCBO's motion to dismiss the employees' main application for failure to provide particulars was denied, though certain allegations were struck for lack of particulars.

The LCBO's motion to dismiss a second application alleging breach of a settlement agreement was granted, as the employees failed to establish a prima facie case.

The Tribunal ordered the LCBO to produce relevant documents subject to confidentiality terms.

Finally, the Tribunal dismissed the employees' allegations of improper conduct by Tribunal counsel and lack of neutrality by the Panel, finding no basis for the concerns.

A group of hospital employees challenged a pay equity plan, alleging it was gender-biased and failed to recognize their job classes as female-dominated.

The employer brought a preliminary motion to dismiss the application on grounds of jurisdiction, timeliness, and standing, arguing that a settlement agreement with the union resolved the matter.

The Pay Equity Hearings Tribunal held that it had jurisdiction because the union could not settle the employees' individual complaints on their behalf, and found the application was not untimely as the delay did not constitute an abuse of process.

The Tribunal directed the applicants to provide further particulars to determine whether they had established a prima facie case regarding the gender characterization of their job classes.

Various groups of employees sought standing to participate in a hearing regarding the revocation or enforcement of a Review Officer's order directing the employer and union to conclude a pay equity plan.

Prior to the hearing, the employer and union reached a settlement on the pay equity plan.

The Tribunal held that the employee groups did not have standing to seek enforcement of the order or to participate in the revocation hearing independently of their bargaining agent.

As the employee groups and the Pay Equity Office were not parties to the revocation hearing, the settlement between the employer and union was binding and concluded the proceedings.

The request for compensation by the employee groups was denied.

The applicant, a former seasonal worker for the City of Peterborough, filed a pay equity complaint under s. 9(2) of the Pay Equity Act.

The Review Officer found in her favour, and she sought enforcement while the employer sought to quash the order.

The employer raised a preliminary objection arguing the Review Officer lacked jurisdiction because the applicant was not an employee for the purposes of the Act.

The Tribunal dismissed the employer's preliminary motion, with written reasons to follow, and directed the Registrar to set dates for the continuation of the hearing.

The Hospital for Sick Children objected to two Orders by a Review Officer that re-evaluated the female job classes of registered nurse (RN) and assistant clinical co-ordinator (ACC) to higher grades under the Pay Equity Act.

The Nurses sought to uphold the RN Order or, alternatively, argued the Hospital's job evaluation system was gender biased.

The Pay Equity Hearings Tribunal majority found the Nurses failed to prove the system was gender biased.

Applying the system, the majority varied the RN Order, finding the four RN positions evaluated fell into two distinct job classes (Grades 10 and 11), and revoked the ACC Order, returning it to Grade 12.

The dissenting Chair would have upheld the RN Order placing them in Grade 12.

The Pay Equity Hearings Tribunal heard preliminary motions regarding an application by the City of Brampton challenging a Review Officer's order.

The Association moved to dismiss the application for failure to provide adequate particulars.

The Tribunal struck paragraph 23 of the City's application, finding that the City's allegation that the Review Officer failed to follow a prior agreement between the parties did not disclose a prima facie violation of the Pay Equity Act.

The Tribunal held that a Review Officer acting under s. 16(2) is not bound by the parties' prior procedural agreements and is not required to survey all male job classes once appropriate comparators are identified.

The Tribunal also ruled that pay equity comparisons should generally be based on data as of the statutory effective date or up to the mandatory posting date.

The Brampton Public Library Board brought a motion requesting the Tribunal's consent under section 31 of the Pay Equity Act to compel a Review Officer to testify.

The Board argued that the Review Officer's testimony was necessary to establish a defence of 'officially induced error' regarding its failure to maintain pay equity.

The Tribunal dismissed the motion, finding that the Review Officer's order was directed solely to the question of maintenance, not the proxy comparison method agreement.

The Tribunal concluded that the extraordinary circumstances required to pierce the confidentiality of the Review Services process were absent.

The employers applied to the Tribunal alleging a change in the identity of the employers under the Pay Equity Act.

The employers argued that the Tribunal should determine who the employer is at different points in time due to changed circumstances, even though no pay equity plan had been posted.

The Tribunal held that it lacked jurisdiction to inquire into changed circumstances absent an existing pay equity plan.

The existence of a plan is a precondition to examining whether changed circumstances render the plan no longer appropriate.

Thomson Newspapers objected to a Review Officer's Order finding it to be the employer for the purposes of pay equity of employees at the Oshawa Times.

The Tribunal reviewed the relationship between the two entities and concluded that, while the publisher of the Oshawa Times controlled the operation of the newspaper, he did so as an employee of Thomson.

As such he was obliged to carry out Thomson's corporate goals and objectives.

Overriding financial control rested with Thomson as did ultimate authority for compensation practices.

The Tribunal affirmed the Review Officer's order and found Thomson to be the employer.

In a preliminary ruling to determine the identity of the employer for the purposes of the Pay Equity Act, the Tribunal held that the relevant point in time for the inquiry is the effective date of the Act (January 1, 1988).

However, the Tribunal noted it would also hear evidence regarding any changes in the organization up to the mandatory posting date to fashion practical remedies.

The Tribunal declined to hear evidence regarding the identity of the employer at the present time, as that was a separate question.

The parties requested an order from the Tribunal incorporating their agreement with respect to the production and use of sensitive business documents.

The Tribunal declined to order the agreement in its entirety, noting that it could not guarantee absolute confidentiality in light of potential freedom of information requests and its obligation to compile a public record for judicial review.

The Tribunal issued a modified protective order that balanced the parties' desire for confidentiality with the Tribunal's obligation to provide a fair and public hearing.

The employer applied for reconsideration of a Tribunal decision regarding the pay equity bargaining process and comparison of job classes.

The employer argued that the comparison system should not have been amended, that materials not before the Tribunal were considered, and that there was no evidence to support conclusions about the rating committee's ability to assess jobs.

The Tribunal dismissed the application, finding that the original decision was consistent with established jurisprudence on job content accuracy, that the parties had full opportunity to make submissions, and that there was adequate evidentiary support for the findings.

The Tribunal concluded the employer failed to meet the test for reconsideration.

The applicant employer brought a preliminary motion alleging a reasonable apprehension of bias, arguing that the unexplained resignation of an employer representative in another case suggested a lack of adjudicative independence at the Tribunal.

The majority of the Tribunal dismissed the motion, finding that the circumstances were too attenuated and remote to raise a reasonable apprehension of bias, and that the Tribunal's history demonstrated independent decision-making.

The dissenting member would have found a reasonable apprehension of bias based on the institutional setting and the lack of explanation for the member's resignation.

The Employer applied to the Pay Equity Hearings Tribunal objecting to a Review Officer's order that found three female job classes (Packer, Packaging Machine Operator B, and Sample Room) were of equal or comparable value to three male job classes (Dough Feeder, Janitor, and Receiver).

The Employer alleged the Union failed to bargain in good faith by rejecting the initial joint evaluations, while the Union alleged the Employer intimidated female committee members.

The Tribunal dismissed both preliminary allegations.

On the merits, the Tribunal found that the joint committee's collection of job information was incomplete and its application of the evaluation system was not gender-neutral, as it failed to consistently value skills and effort characteristic of women's work, such as manual dexterity, visual concentration, and multi-tasking.

Applying the evaluation tool to the corrected job information, the Tribunal upheld the Review Officer's findings that the female job classes were of equal or comparable value to the male job classes and ordered the parties to negotiate a pay equity adjustment schedule.

The Pay Equity Office (P.E.O.) applied to the Tribunal seeking to enforce a Review Officer's order against the employer and the union.

The employer and the union had previously settled their dispute regarding the pay equity plan and argued that the P.E.O. lacked standing to challenge their settlement or enforce the order.

The Tribunal held that the P.E.O. is not a party to proceedings under subsection 32(1) of the Pay Equity Act and does not meet the test for participation under the Statutory Powers Procedure Act.

The Tribunal concluded that the P.E.O. has no statutory jurisdiction to review settlements or enforce orders in these circumstances, and dismissed the application for lack of standing.

The applicants filed objections to a review officer's order regarding the employer's pay equity plan, alleging undervaluation of their work and flawed comparison systems.

The Tribunal considered whether the applicants had established a prima facie case in their pleadings.

The majority held that the pleadings, though sparse, went beyond bald allegations and established a prima facie case, noting that non-union applicants have limited access to information about their employer's pay equity plan.

The Tribunal granted leave to provide further particulars and directed a second pre-hearing conference.

The Alternate Chair dissented, finding that the applications failed to plead material facts demonstrating how the evaluations were inappropriate.

A review officer referred a matter to the Pay Equity Hearings Tribunal under s. 24(5) of the Pay Equity Act, 1987, forming the opinion that the employer was not complying with an order to negotiate a pay equity plan.

The Tribunal noted that hearings are de novo and the review officer's opinion is not evidence.

The Tribunal directed the union to file an application if it intended to allege non-compliance, and scheduled a hearing to determine how to proceed.

A Review Officer referred a pay equity matter to the Tribunal under subsection 24(5) of the Pay Equity Act, 1987, alleging that neither the Association nor the Board had complied with a previous order.

The Tribunal requested written submissions from the parties on how to proceed.

Neither party alleged non-compliance or wished to take carriage of the proceedings, indicating instead that they were still negotiating.

The Tribunal concluded it was not appropriate to proceed with the referral without a party willing to act as the applicant and present evidence, though the original order remained binding.

A Review Officer referred a matter to the Pay Equity Hearings Tribunal under subsection 24(5) of the Pay Equity Act, 1987, alleging that neither the Senior Officers' Association nor the Board of Commissioners of Police had complied with an order to compare female and male job classes.

As neither party had made an application to the Tribunal, the Tribunal requested written submissions on several procedural and substantive issues, including whether the Tribunal's Rules of Practice applied and whether the matter was properly before the Tribunal.

The Tribunal considered a preliminary objection regarding whether an application must be processed through Review Services before being filed with the Tribunal.

The Tribunal ordered that notice of the preliminary objection be given to the Pay Equity Office to obtain its views on the ramifications of not following the process set out in the Pay Equity Act.