Ontario Public Service Employees Union v. Liquor Control Board of Ontario, 2015 HRTO 766

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Public Service Employees Union on behalf of

Eileen Allen, Victoria Baier, Stacey Sholtack and other employees

Applicant

-and-

Liquor Control Board of Ontario and Her Majesty the Queen

in Right of Ontario as represented by the Minister of Finance

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: June 9, 2015

Citation: 2015 HRTO 766

Indexed As: Ontario Public Service Employees Union v. Liquor Control Board of Ontario

APPEARANCES

Ontario Public Service Employees Union, Applicant

Janet Borowy and Fay Faraday, Counsel

Liquor Control Board of Ontario, Respondent

Justin Diggle and Lauri Reesor, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance, Respondent

Lori Patyk, Counsel

Introduction

1The Ontario Public Service Employees Union (“OPSEU”) filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on behalf of the employees it represents, three of whom are named in the Application, alleging discrimination with respect to employment on the basis of sex, against the employer, the Liquor Control Board of Ontario (the “LCBO”), as well as the Minister of Finance (the “Crown”).

The Parties

2This Application was commenced by OPSEU pursuant to section 34(5) and (6) of the Code which states as follows:

(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) would have been entitled to bring an application under subsection (1); and

(b) consents to the application.

(6) If a person or organization makes an application on behalf of another person, the person or organization may participate in the proceeding in accordance with the Tribunal rules.

3OPSEU represents 7,000 LCBO employees, approximately 6,180 of whom work in the LCBO’s retail stores. The vast majority of those employees (between 5,200 and 5,300) are Customer Service Representatives (“CSRs”). Approximately 4,000 CSRs have casual part-time employment status while the rest have permanent, full-time employment status (with the exception of a very small group of employees who have permanent part-time status). The balance of the LCBO’s bargaining unit employees are managers, product consultants, and employees who work in retail depots. This Application relates to the terms and conditions of work associated with the casual part-time CSR position.

4The LCBO is a crown corporation, incorporated under the Liquor Control Act, R.S.O. 1990, c. L.18 (the “LCA”). The LCBO is responsible for regulating the importation, warehousing, distribution and sale of alcohol throughout the province of Ontario and currently operates 635 retail stores and five logistics warehouses across Ontario. The LCBO’s net revenues are transferred to the Ontario government where they are used to fund public services.

5The Crown has oversight responsibilities for the LCBO under the LCA. The LCBO is governed by an 11-member board of directors that is appointed by the Lieutenant Governor-in-Council on the recommendation of the Premier and the Minister of Finance. Under the LCA, the LCBO reports to the Minister of Finance.

6This Application is at the earliest stage in the Tribunal’s process. While hearing dates have been set, disclosure has not yet occurred between the parties. The respondents have raised a number of preliminary issues they wish to have resolved before the Application moves further in the hearing process.

The Preliminary Issues

7The LCBO and the Crown make the following requests:

1. Dismissal of the Application for lack of timeliness and no reasonable prospect of success;

2. A determination that there are pay equity issues engaged by the Application which fall within the exclusive jurisdiction of the Pay Equity Hearings Tribunal (“PEHT”);

3. A determination that OPSEU is in a conflict of interest in advancing the Application on behalf of its members; and

4. Disclosure of the names of the all bargaining unit members who have signed consent forms in relation to this Application.

8In addition, the Crown makes the following request:

• Dismissal of the Application against the Crown on the basis that the Application contains no direct allegations of discrimination against it and the Crown is not responsible for the day-to-day activities of the LCBO.

The LCBO takes no position on the request for dismissal against the Crown.

9The parties participated in oral submissions by teleconference on February 12, 2015, with respect to these requests. They also filed comprehensive materials at the commencement of the Application and additional written submissions on the preliminary issues in advance of the teleconference. In addition to the oral submissions, I have considered all of the written materials filed by the parties.

Allegations and Arguments

Nature of the Allegations

10OPSEU alleges that the casual CSRs are predominantly female and that they are disadvantaged with respect to the terms and conditions of their work as a result of systemic sex discrimination. OPSEU alleges that men are more likely to be in permanent full-time positions while women are more likely to be in casual CSR positions. OPSEU alleges that women are streamed into casual CSR positions and despite doing the same work as permanent full-time CSRs, they are disadvantaged by:

• Significantly lower wages (23.5% to 38% lower);

• Reduced benefits or no benefits;

• Restricted access to promotions; and

• Significantly less job security.

11OPSEU argues that historically men occupied all of the customer service positions at the LCBO. These positions were permanent, full-time, and allegedly valued in accordance with a male compensation norm, namely, the male breadwinner. OPSEU alleges that the casual positions which are the subject of this Application were created in the 1970s specifically as “women’s work”. OPSEU alleges that these positions were undervalued in comparison with the full-time positions occupied by men and that this legacy of disproportionately assigning women to jobs with casual status and undervaluing their work persists to this day.

12OPSEU also alleges that casual CSRs are disadvantaged by comparison with the casual Warehouse Workers (WWs) who are alleged to be predominantly male. OPSEU alleges that casual WWs have access to pathways that move them out of casual status on an accelerated path into higher wages, full benefits, and broader access to promotions and permanent full-time jobs. OPSEU alleges that women are streamed away from casual WW positions and into retail casual CSR positions.

13The LCBO strongly denies all of the allegations and argues that since approximately 2004, the ratio of men and women in the LCBO’s permanent full-time positions in the bargaining unit is effectively 50% each and that the ratio of women in those positions continues to increase. The LCBO argues that the majority of CSRs in all three categories – permanent full-time, permanent part-time and casual – are women, which renders it impossible for OPSEU to establish sex-based discrimination with respect to these groups of employees. At the same time, the LCBO argues that to the extent that OPSEU relies on historical differences in wages and other terms and conditions of employment between the Casual CSR and the once male-dominated permanent full-time CSR category, those allegations are out of time.

14OPSEU responds by arguing that the current incumbency rate in permanent full-time CSR positions does not erase the alleged history of sex discrimination which resulted in more advantageous terms and conditions of work for permanent full-time CSRs. OPSEU argues that the Tribunal will be required to consider a variety of factors that contribute to systemic discrimination, including but not limited to, the historical incumbency of the CSR positions and the alleged gender stereotyping of those positions.

15While OPSEU argues that the core functions, duties and responsibilities of casual CSRs and permanent full-time CSRs are the same, the LCBO disputes this. The LCBO provides a number of arguments for why these positions are substantively different in nature. The LCBO also argues that the casual WW position is not comparable to the casual CSR position and that any differential in compensation is related to the different nature of the two jobs and not based on sex. There is clearly a factual dispute between OPSEU and the LCBO with respect to this issue.

16Without commenting on the likelihood of success, my understanding of OPSEU’s argument is as follows: full-time CSR positions at the LCBO were created and continue to be valued in relation to a male compensation norm while casual positions continue to be undervalued because they have their origins in stereotypes about the nature and value of women’s work. To the extent that casual jobs exist which are predominantly male-dominated (WWs for example), the allegation is that women are streamed away from those positions and men in those positions are able to move more quickly through the wage grid and into full-time positions. OPSEU argues that the historical context is paramount to understanding the allegation that the casual CSR positions, which are currently occupied predominantly by women, remain imbued with sex discrimination to this day.

17In addition to the theories and arguments about how the alleged facts of this case are linked by systemic sex discrimination, OPSEU describes how it intends to prove that casual CSRs are disadvantaged by lower wages, slower progression through the wage grids, lack of benefits and guaranteed hours, unpredictable shifts, limited job security and seniority rights, limited access to permanent full-time jobs.

18The factual backdrop for these allegations begins, according to OPSEU, in the 1970s when women began to be employed by the LCBO in part-time positions. There is a history of collective bargaining and interest arbitrations which gave rise to the creation of a new permanent part-time CSR position. This resulted in 1987 in the conversion of approximately 760 employees in the female-dominated casual jobs to permanent part-time status. OPSEU argues that the new positions were directed at eradicating the disadvantages experienced at the time by part-time workers, who were predominantly female, and that they have been eroded over time. OPSEU also argues that many of the casual CSRs are working hours comparable to permanent part-time employees but do have the same status and terms and conditions of work.

19Again, it is important to note that the LCBO does not agree with the factual allegations or the historical context which OPSEU relies on. As just one example, the LCBO disagrees with OPSEU’s historical account of the creation and demise of the permanent part-time CSR position. The LCBO intends to prove that it was through collective bargaining that the decision was made to phase out the permanent part-time CSR position in favour of a process which has resulted in an increase in the number of women in permanent full-time CSR positions.

Is this really a Pay Equity Complaint?

20The LCBO argues that fundamentally this is a complaint that pay equity has not been achieved or maintained and that it should be dealt with pursuant the provisions of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (the “PEA”). The LCBO argues that at the core of this Application is OPSEU’s dissatisfaction with the existence of two separate pay equity plans which were negotiated in 1990 – one for casual bargaining unit members and one for all other bargaining unit members.

21The LCBO argues that in advancing arguments of sex discrimination, OPSEU draws its factual context in part from the fact that in 1990 when the two plans were created, the permanent full-time CSR category was designated male-dominated for pay equity purposes. The LCBO also argues that the applicant relies on the principles and analysis under the PEA for advancing the allegations of wage discrimination before this Tribunal.

22The LCBO argues that the legislature has made a clear and deliberate policy choice that complaints of systemic gender-based discrimination in wages should be resolved through the analysis mandated in the PEA and that the PEHT has extensive technical and specialized knowledge and experience in applying these tests. The LCBO argues that the PEA establishes a comprehensive scheme which provides exclusive jurisdiction to the Pay Equity Commission (“PEC”) and the PEHT to address complaints that pay equity has not been achieved or maintained.

23The LCBO alleges that there have been ongoing negotiations with OPSEU since 2006 with respect to possible changes to the pay equity plans. The LCBO argues that those negotiations have resulted in considerable progress and that if OPSEU is dissatisfied, that issue should be dealt with first by the PEHT with the residual issues to be dealt with by the Tribunal at a later date.

24The LCBO does acknowledge that there are allegations raised by OPSEU, relating to both compensatory and non-compensatory aspects of the casual CSR positions, which the PEHT would not decide, as confirmed by the decision of the Divisional Court in Canadian Union of Public Employees Local 1999 v. Lakeridge Health Corporation, 2012 ONSC 2051 (“Lakeridge”). They include allegations about the length and structure of the pay grid, job security, unpredictable hours and work schedules, lack of access or reduced access to benefits, reduced access to promotions, and the streaming of women into casual CSR positions.

25There is no complaint before the PEHT. Nevertheless, the LCBO argues that the PEHT has exclusive jurisdiction over issues associated with the achievement and maintenance of pay equity and as a result, it is unavoidable that there will be two proceedings as was the case in Lakeridge. The LCBO argues that OPSEU should file a claim under the PEA, that claim should proceed first at the PEHT, and any remaining issues can then be dealt with by the HRTO.

26OPSEU argues that the pay equity negotiations are not ongoing. OPSEU also argues that the previous negotiations are not relevant to this Application except to the extent that they produced information which allegedly supports OPSEU’s broader allegations of sex discrimination. OPSEU argues that the allegations advanced in the Application cannot be compartmentalized and carved out between the PEHT and the HRTO. OPSEU also argues that there is nothing in the PEA which ousts the jurisdiction of the HRTO to hear allegations of discrimination with respect to compensation.

27OPSEU argues that the right to be free from systemic sex discrimination in wages lies at the heart of the right to be free of discrimination in employment under section 5 of the Code and so is firmly within the Tribunal’s jurisdiction. OPSEU argues that in filing this Application, it chose the forum where all of the allegations of sex discrimination could be resolved in one proceeding and that HRTO has the broadest mandate and remedial authority to address the overall job structure which is at issue in this Application.

28OPSEU argues that this Application, when considered in its full context, goes well beyond the jurisdiction of the PEHT, including the compensation issues, which are broader because they include allegations of differential treatment associated with the structure of the wage grids. OPSEU also argues that the allegations of differential treatment between predominantly male casual WWs and predominantly female casual CSRs would not be dealt with by the PEHT at all. It is alleged that the casual WWs have the opportunity to move through the wage grid at an accelerated rate, resulting, in certain cases, with them moving more quickly into permanent full-time positions. OPSEU alleges that this advantage does not exist for the predominantly female casual CSRs even though a significant number of women are working the same hours as the casual WWs. OPSEU argues that the decision in Lakeridge confirms that the structures of the wage grids and the pace at which workers move through the wage grids is not an issue which the PEHT would consider.

29OPSEU argues that this Application is about allegations of differential and disadvantageous treatment in the terms and conditions of work experienced by predominantly female CSRs and that these are not issues the PEHT would have jurisdiction to deal with.

Conflict of Interest

30The LCBO requests that OPSEU be removed as the Applicant in this proceeding on the basis of a conflict of interest with the bargaining unit members on whose behalf the Application has been filed.

31The LCBO argues that the terms and conditions of work which are impugned in this Application are the direct result of collective bargaining. The LCBO argues that OPSEU has signed and agreed to the collective agreements that have maintained the very employee classifications and categories and terms and conditions of employment that OPSEU alleges are discriminatory. The LCBO argues that OPSEU is in a conflict of interest vis-à-vis the bargaining unit members in advancing these allegations. If a finding of discrimination is made, the LCBO argues that OPSEU should be equally responsible for that finding and for any remedy which is ordered by the Tribunal.

32OPSEU argues that there is no inherent conflict of interest between the union and its members in this Application and there is no basis on which to override the express choice of the bargaining unit members that OPSEU act as the applicant. OPSEU argues that it is in the best position to advance the systemic allegations contained in the Application which will have an effect on the vast majority of bargaining unit members it represents.

33OPSEU alleges that the historic practices which resulted in ongoing sex discrimination originated in the 1970s and evolved through the 1980s and 1990s before OPSEU held any bargaining rights at the LCBO. OPSEU argues that since it acquired bargaining rights in July 2005, it has been pursuing various avenues in attempting to rectify the alleged systemic discrimination that is the subject of this Application, an allegation which the LCBO denies. OPSEU argues that the LCBO incorrectly conflates OPSEU and the predecessor union, the Ontario Liquor Employees Union (“OLBEU”) in alleging that OPSEU is equally responsible for any liability under the Code. OPSEU argues that during the most recent round of collective bargaining a memorandum of agreement was signed. It provided for the parties to meet within 90 days following ratification of the latest contract in an effort to resolve OPSEU’s allegations of systemic discrimination. It is alleged that the memorandum was signed without prejudice to OPSEU pursuing this Application before the Tribunal.

34This issue was discussed during the conference call with a view to addressing the LCBO’s concerns on two fronts. The first is that the LCBO should not be restricted in leading evidence which could lead to adverse findings against OPSEU despite the fact that OPSEU is not a formal respondent to this Application. I agree with the LCBO, and it was acknowledged by OPSEU, that it will be up to the Tribunal to consider the evidence and to make the findings that flow from the evidence, whether they are favourable or adverse to any party.

35The second issue is that the LCBO is seeking to ensure that members of the bargaining unit are aware that adverse findings could be made against OPSEU if the LCBO is successful. I suggested that this might be best accomplished by ensuring that my decision was made available to bargaining unit members so that they could factor this consideration into any decision they make about representation in this Application.

The Crown

36OPSEU alleges that the Crown exercises ownership and control over the LCBO with respect to the establishment and maintenance of the overall job structure at issue in the Application. OPSEU argues that the LCBO reports directly the Minister of Finance and the Legislative Assembly with respect to its activities and that collective agreements cannot be finalized until the approval of the Minister of Finance is secured through an Order in Council. OPSEU argues that whether the Crown is in a controlling position or a position of joint liability requires a finding of both fact and law and that it is premature to make a determination about the relationship between the Crown and the LCBO.

37The Crown disputes the characterization of its relationship with the LCBO and argues that the LCBO has broad discretion to do all things necessary for the management and operation of the Board in the conduct of its business. The Crown argues that it should not be a respondent in this proceeding because it is not involved in the day-to-day operations of the LCBO and is not involved in negotiations related to the collective agreement.

Analysis

Summary

38To summarize my findings on the requests, section 5(1) of the Code provides broad protection from discrimination in employment, including allegations of sex-based discrimination in compensation. The jurisdiction of the PEHT to consider whether or not pay equity has been achieved or maintained pursuant to the provisions of the PEA does not affect the jurisdiction of the HRTO in this case.

39A finding that the Application has no reasonable prospect of success is not appropriate in the circumstances. In respect of the timeliness issue, OPSEU has provided a sufficient basis for the Tribunal to conclude that the allegations constitute a series of incidents. OPSEU alleges that women in casual CSR positions are disadvantaged with respect to the terms and conditions of their work because of a legacy of sex discrimination in how the CSR positions have evolved at the LCBO. There is a significant factual dispute among the parties on almost all of the outstanding issues and it would be premature to dispose of these allegations without first hearing evidence. This reasoning also applies to my decision not to dismiss this case against the Crown.

40I have also determined that OPSEU may continue in the role of the Applicant, the LCBO may lead evidence to support its argument that OPSEU is responsible for any adverse findings by the Tribunal, and that the bargaining unit members are to be advised of this fact. The parties are all represented by experienced counsel and as a result, I have determined that OPSEU will provide this information to its members by whatever means OPSEU deems appropriate.

41With respect to the consent forms, I am deferring that issue until the disclosure is complete and suggesting that it be addressed in case management along with any outstanding questions about the relationship between the signed consent forms and the scope of any remedial order made by the Tribunal.

42In coming to these conclusions I have considered this Application in its full context. However, nothing in my findings is meant to be construed as a comment on the likelihood of success by any of the parties except to say that the Application has passed the very low threshold of “no reasonable prospect of success”. I understand and appreciate the arguments advanced by the respondents, particularly the concern that the current incumbency rates in all of the CSR positions render it more difficult to prove that sex discrimination is a factor in the current terms and conditions of employment. However, at this early stage in the proceeding, before any evidence is considered, it would be premature to dispose of these allegations. OPSEU has provided a factual and theoretical framework for the allegations it intends to prove and it will be permitted to lead evidence to establish its case.

No Reasonable Prospect of Success and Timeliness

43The no reasonable prospect of success test is applied by the Tribunal in circumstances where it appears that allegations of disadvantageous treatment are unrelated to the prohibited grounds under the Code, or where there is no reasonable prospect that the applicant will be able to produce evidence which will prove discrimination. In many of those cases the applicant has simply misunderstood the legal test for discrimination or has relied on impressions and suspicions rather than evidence for their conclusions. The summary hearing process effectively disposes of applications, prior to hearing evidence, which are based on allegations of general unfair treatment rather than discrimination.

44This case is not in any way similar to the kinds of cases which are disposed of through the Tribunal’s summary hearing process and I do not consider it appropriate to dismiss this Application. These are not bald allegations. The applicant has provided particulars about the gender composition of the casual CSRs, the alleged disadvantages experienced by them and advanced an argument which purports to link that disadvantage to the ground of sex. Assuming the allegations of the applicant are true, which I am required to do at this stage, I cannot say that there is no reasonable prospect of success. Pursuant to the Tribunal’s Rule 19A.6, I do not consider it necessary or useful to provide further reasons.

45With respect to the issue of timeliness, the Code identifies timely applications as those which are filed within one year of the last (or only) incident of discrimination by a person who believes that their rights have been infringed. In this case, OPSEU argues that the allegations are ongoing in nature and therefore constitute a series of incidents pursuant to section 34(1)(b).

46Again I note that there is a significant factual dispute between the parties. Even where the parties appear in agreement or close to agreement on the facts (the current incumbency rate of the permanent full-time CSRs being one example), there is no agreement on what conclusions those facts would lead to in the context of a discrimination analysis. This is not a case where there are agreed facts which would be determinative of the timeliness issue.

47The LCBO also argues that in view of the fact that permanent full-time positions are no longer male-dominated, any attempt to rely on that history renders the Application out of time. In other words, there is no current differential treatment which could be linked to the prohibited ground of sex and therefore the allegations are untimely. OPSEU argues that the current incumbency rates do not tell the whole story and do not erase what is otherwise alleged to be the gendered history which produced the ongoing terms and conditions of work for casual CSRs.

48To the extent that the incidents are alleged to be ongoing and linked by a theory of historical, systemic discrimination, this Application is similar in nature to the Applications which resulted in the decisions in Grange v. Toronto (City), 2014 HRTO 633 (“Grange”), and Association of Ontario Midwives v. Ontario (Health and Long-Term Care, 2014 HRTO 1214.

49I would apply the same reasoning here. I particularly note the finding in Grange that the Code does not support a detailed and searching analysis of each allegation prior to hearing. I disagree with the LCBO that a case of this nature should be dismissed for lack of timeliness because the applicants tie their current employment circumstances in part to allegations of historical sex discrimination. OPSEU alleges that the work of casual CSRs continues to be undervalued because it is done by women. The allegations form a series of incidents which share this common theme.

50Again, I must emphasize that the merits of this Application can only be decided on the basis of evidence. At this stage, however, it is sufficient that OPSEU has provided particulars describing an ongoing exchange of labour, and a coherent, albeit disputed, theory of the case, to support an allegation of continuing breach rather than the continuing effects of a previous breach of the Code (Garrie v. Janus Joan Inc., 2012 HRTO 1955). Whether the applicant will ultimately prove a breach of the Code is a matter to be decided on the evidence.

51Having found the application timely on the basis of a series of incidents, section 34(2) of the Code, which requires proof of good faith and a no substantial prejudice test, is not applicable.

The Jurisdiction of the HRTO and the PEHT

52The LCBO argues that the Tribunal lacks jurisdiction to deal with OPSEU’s allegations of differential treatment in compensation. The LCBO argues that in this case, those issues fall within the exclusive jurisdiction of the PEHT.

53There is no dispute that in general, the HRTO has jurisdiction over allegations of sex-based discrimination with respect to the terms and conditions of employment, including compensation, pursuant to section 5(1) of the Code which reads as follows:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

54There is similarly no dispute that a number of the allegations advanced by OPSEU fall within the jurisdiction of the HRTO and not the PEHT. Those allegations include disadvantages associated with the structure of wage grids, progression through the grids, job security, predictability in hours and shifts, benefits, and promotional opportunities. However, the LCBO takes the position that the HRTO has no jurisdiction to deal with any allegations over which the PEHT has jurisdiction and suggests that those allegations should be carved out and adjudicated first by the PEHT.

55In Lakeridge, the Divisional Court confirmed the decision of the PEHT that its jurisdiction extends to determining whether or not pay equity has been achieved pursuant to the PEA. That determination involves a process of evaluating comparable male and female job classes and equalizing the maximum rate at the top of the wage grids (the job rate).

56The Divisional Court also upheld the decision of the PEHT with respect to the limits on its jurisdiction and specifically the finding that the achievement of pay equity does not require the elimination of different rates of progression through the wage grids. At paragraphs 69 and 70 of the Lakeridge decision, the Divisional Court found that if there is an ongoing inequality in wages because of the unequal grids that is an issue to be addressed independently under the Code.

57The Divisional Court in Lakeridge also confirmed that the role of the PEHT is to deal with complaints of a contravention of the PEA, the regulations or an order of the PEC. The PEHT is empowered to deal with human rights issues, including consideration of whether its own enabling legislation is human rights offensive, but it does not have the authority to deal with stand-alone violations of the Code.

58Therefore, if OPSEU had filed a complaint under the PEA, the issue before the PEHT would be whether or not pay equity had been achieved pursuant to the provisions of the PEA. If the decision was favourable to OPSEU then the outcome would likely be the equalization of the maximum rate at the top of the wage grids. However, none of the other issues in OPSEU’s Application before the HRTO would be addressed by the PEHT.

59Even if the decision of the PEHT was not favourable to OPSEU because of a finding, for example, that the jobs were not comparable for the purposes of the PEA, that would not be determinative of the HRTO’s ability to compare those same jobs for the purpose of determining a violation of the Code. The Divisional Court in Lakeridge found that the statement by the PEHT that it would be “counterintuitive to conceive of an employer who complies with the PEA’s requirements as being in contravention of the Code” was an observation and not determinative of the issue if were to come before the HRTO. The Divisional Court explicitly found that individual employees may have potential sex discrimination claims against their employers because of ongoing wage disparity caused by the grids which could be brought before the HRTO on the basis of an alleged violation of the Code and a proper factual record.

60In support of these findings the Divisional Court cited the decision in Nishimura v. Ontario (Human Rights Commission) (1989), 1989 CanLII 4317 (ON SC) (“Nishimura”). That case involved a complaint by women working as inside sales representatives at the Toronto Star. The complainants alleged that their male counterparts, who worked as outside sales representatives for the same employer, were paid more for their work. The issue before the Court was whether the allegation of unequal pay for work of equal value can constitute sex discrimination contrary to s. 4(1) and s. 8 of the Code. The Court was also invited to consider the effect of other legislation such as the PEA or the Employment Standards Act on s. 4(1) (now section 5(1)).

61Nishimura is the only case presented to me which deals directly with the question whether the PEA ousts the jurisdiction of the HRTO to deal in any way with allegations of sex-based discrimination in employment and compensation. The LCBO argues that Nishimura is of no assistance because it involved complaints to the Commission which predated the coming into force of the PEA. The Divisional Court in Nishimura acknowledged this fact and still went on to make the following statements about the relationship between the Code and the PEA:

So far as what I have described as the second stage is concerned, it is my view that the existence of the E.S.A. and the P.E.A. does not remove these complaints from the jurisdiction of the Commission. The E.S.A. deals only with pay for the same or similar work and the P.E.A. looks to the future, and as I have said was not in existence when the applicants' complaints arose. Under the P.E.A. there are not the broad powers found in s. 40 of the Code and the Code itself anticipates the problem of overlapping and in s. 46(2) provides for paramountcy. The fact that the legislature enacted the P.E.A. does not show a lack of legislative intent to have the Code apply.

62The Divisional Court in Nishimura concluded that the allegation of unequal pay for work of equal value can constitute sex discrimination contrary to the Code, and that this jurisdiction was unaffected by the existence of the PEA. Nishimura has not been overturned and it was explicitly cited in Lakeridge for the proposition that the HRTO has broader jurisdiction than the PEHT over allegations of sex-based discrimination in compensation and employment.

63OPSEU is not asking this Tribunal to determine whether pay equity has been achieved in accordance with the provisions of the PEA. The Application before me alleges that the casual CSR positions are predominantly female and that systemic sex discrimination is a factor in how the terms and conditions of their work have been constructed and maintained.

64The Application before this Tribunal is a complaint of discrimination under the Code and not a “pay equity complaint” as that term is defined under the PEA. A pay equity complaint is one which is filed with the PEC alleging a failure to achieve or maintain pay equity in accordance with the technical provisions of the PEA. OPSEU’s Application is much broader in that it alleges a failure on the part of the employer to ensure equal treatment with respect to employment without discrimination on the basis of sex. That OPSEU would choose, in part for reasons of judicial economy, to bring these issues before the HRTO, is consistent with the observation in both Lakeridge and Nishimura, that although they are both forms of anti-discrimination legislation, the Code is much broader than the PEA.

65While it is true that any number of remedies might flow from a finding of discrimination with respect to the structure of casual CSR positions, including the equalization of the job rate, this does not deprive the HRTO of jurisdiction to award that remedy. It would be a truly absurd result if the HRTO, which has broader jurisdiction than the PEHT to deal with allegations of discrimination in employment, could direct that the respondent cease the practice of ongoing wage disparity caused by the grids but be precluded from equalizing the maximum rate on the basis that this remedy falls within the exclusive jurisdiction of the PEHT.

66In the decision in Lakeridge, the union attempted to have similar complaints about the structure of wage grids adjudicated first before the PEHT. The necessity for two proceedings arises from the finding of the PEHT that those issues were not within its jurisdiction. There is nothing in the Lakeridge decision which would direct OPSEU to file first with the PEHT and then have any remaining issues adjudicated by the HRTO.

67With respect to the privative clause contained at section 30(1) of the PEA, it signals to a reviewing court the deference that should be accorded to decisions of the PEHT – decisions which are made by highly skilled members applying the complex, technical provisions of the PEA. The privative clause reads as follows:

30. (1) The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes.

68The jurisdiction of the HRTO to deal with allegations of discrimination in employment can only be removed by explicit reference either in the Code or the PEA.

69The only other case that I am aware of which deals with the relationship between the PEA and the Code is the decision of this Tribunal in St. Amand v. Thames Valley District School Board, 2009 HRTO 1051. I would distinguish that case from the one before me. The application was filed by an individual male employee who considered it unfair that employees in a female job class received a pay equity adjustment. The Tribunal found that the applicant had not raised an allegation of a Code breach and that was fundamentally the basis for dismissing the application.

70The LCBO relied on a number of cases which set out the test for determining the best forum in circumstances where two tribunals have concurrent jurisdiction over allegations of discrimination. Those cases are not helpful to me for two reasons. The first is that the LCBO argues that the jurisdiction is not concurrent, but rather, the PEHT has exclusive jurisdiction over the compensation issues engaged by the Application. The second is because of this observation by the Supreme Court in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 at para. 44:

The analysis that the respondent invites is premised on the assumption that the SBT could decline jurisdiction if it determines that the OHRC is a more appropriate forum in which the applicants could advance their claim. This premise is unnecessary when a tribunal is determining whether another decision maker has exclusive jurisdiction; in that context, the tribunal is not deciding which of two forums is preferable, but rather which of two forums has jurisdiction in the first place. But this premise is vital in the present appeal because the jurisdiction of the SBT has already been triggered. In order for the SBT to be able to decline to hear the issue properly in front of it, the legislature must have granted it this power.

71The Tribunal does not have the power to decline jurisdiction over allegations which are properly within its jurisdiction except in the limited circumstances of section 45.1 or a deferral pursuant to the Tribunal’s Rules. Section 45.1 is not triggered in this case because no other proceeding has dealt in whole or in part with the allegations before me. To date, the discretion to defer has been exercised only in circumstances where another legal proceeding has been commenced. The Tribunal does not decline jurisdiction over human rights issues where no other proceeding has been commenced, even if a better forum exists for dealing with the applicant’s allegations. In any event, for all of the reasons I have set out above and because of the essential nature of this dispute, I would conclude that this Tribunal is the better forum for determining the allegations advanced by OPSEU.

72These are my conclusions. The allegations before me fall within the jurisdiction of the HRTO pursuant to section 5(1) of the Code. The Tribunal cannot refuse to deal with allegations properly within its jurisdiction. There is no basis for deferral since a proceeding under the PEA has not been commenced. There is nothing in the PEA or the Code which ousts the jurisdiction of the HRTO to deal with these allegations. This Application goes well beyond what the PEHT has defined as the boundaries of its own jurisdiction. The essential character of the Application before me is one of sex-based discrimination in the overall job structure of the casual CSR classification, including, but not limited to, issues of compensation.

Conflict of Interest

73As I indicated above, the LCBO requests that OPSEU be removed as the Applicant in this proceeding on the basis of a conflict of interest with the bargaining unit members on whose behalf the Application has been filed. The LCBO argues that the potential for conflict exists as a result of the possibility that OPSEU will be found to be responsible for any adverse findings made by the Tribunal in this matter.

74It is not clear to me how OPSEU’s interests are antagonistic to or in conflict with the members it represents. OPSEU alleges (and the LCBO denies) that it has pursued allegations of systemic sex discrimination through the collective bargaining process. OPSEU argues that it is appropriate for the union to take steps to bring this matter before the Tribunal even though OPSEU is a party to the collective agreement provisions which are alleged to be human rights offensive.

75However, I agree with the LCBO that the fact that OPSEU has commenced this Application should not preclude the LCBO from attempting to prove that OPSEU has been complicit in creating and maintaining the conditions which are alleged to violate the Code.

76In my view, the LCBO’s concerns can be effectively addressed by acknowledging that there is a factual dispute which could lead to the result that the LCBO has suggested. The LCBO may lead evidence to support its argument that OPSEU is responsible for any adverse findings and/or remedies ordered by the Tribunal. As I indicated earlier, the parties are all represented by experienced counsel and as a result, I have determined that OPSEU will disclose this information to its members by whatever means OPSEU deems appropriate.

The Crown

77The Crown is alleged, in fact and in law, to exercise ownership and control with respect to the establishment and maintenance of the overall job structure at the LCBO. OPSEU alleges that the Crown ultimately approves the collective agreements negotiated with the LCBO. OPSEU also alleges that the Crown plays “a direct role in setting the core economic parameters within which the LCBO must operate, drives the agenda to maximize dividends, and so has both a direct and indirect role in how that economic model is translating into staffing practices through the use of a “casual” workforce and the discriminatory terms and conditions that apply to these workers.”

78The Crown argues that the LCBO has broad discretion to do all things necessary for the management and operation of the LCBO in the conduct of its business. The Crown argues that it should not be a respondent in this proceeding because it is not involved in the everyday operations of the LCBO and is not involved in negotiations related to the collective agreement.

79There is a factual dispute about the extent to which the Crown is responsible for the activities of the LCBO and particularly with respect to the allegations of sex discrimination. For that reason it is premature for the Crown to be removed as a respondent.

Confidentiality of the Consent Forms

80The respondents have been provided with the names of three individuals who signed Form 4 consents in relation to this Application. OPSEU has filed another 1190 consents which it wishes to remain confidential, although some of those individuals will likely be disclosed as witnesses at a later stage in the proceeding. OPSEU argues that these individuals should remain confidential because they are vulnerable and concerned about retaliation, and also argues that disclosure of the individual names will not alter the factual foundation of the Application.

81In my view, this issue should be deferred until disclosure is complete. There is an outstanding question about the relationship between the signed consent forms and the scope of any remedy, if ordered, which should be resolved as part of the case management process leading up to the hearing. The disclosure of the names of each individual who has or who will sign a consent form will be dealt with at that time.

ORDER

82The Tribunal makes the following orders:

• The Request of the respondents for dismissal on the basis of timeliness and no reasonable prospect of success as well as the Crown’s Request for dismissal against the Crown are dismissed;

• The Request of the respondents for a determination that certain allegations raised in the Application fall within the exclusive jurisdiction of the PEHT is dismissed;

• The Request of the respondents for the removal of OPSEU as the Applicant for conflict of interest is dismissed;

• The Request of the respondents for disclosure of the signed consent forms is deferred; and

• The parties have agreed on hearing dates and dates for compliance with Rules 16 and 17.