COURT FILE NO.: 425/03

DATE: 20040406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, THEN AND FERRIER JJ.

B E T W E E N:

GENERAL HEALTH SERVICES INC., operating as CIRCLE OF LIFE HEALTH SERVICES and TORONTO EAST GENERAL HOSPITAL

Applicants

• and -

COLLIN BUCHANAN, BASIL CHINENYE, ROXANNE EDWARDS and the PAY EQUITY HEARINGS TRIBUNAL

Respondents

James T. Beamish, for the Applicants

Chris G. Paliare, for the Respondent Tribunal

HEARD: April 6, 2004

o’driscoll J.: (Orally)

1The applicants seek Judicial Review of the decisions of the Equity Hearings Tribunal (Tribunal), dated February 13, 2003, and April 22, 2003. The February proceeding was an application for a determination by the Tribunal that Circle of Life’s non-management employees were “casual” for the purposes of the Pay Equity Act, R.S.O. 1990, c.P.7, (“the Act”). Under the Act, “casual” employees need not be included in compensation adjustments. The Tribunal concluded that the employees were not casual for the purposes of the Act.

2Circle of Life requested a reconsideration of the Tribunal’s February 2003 decision. On April 22, 2003, the Tribunal denied the request for reconsideration.

3The purpose of the Act is “to redress systemic gender discrimination in compensation for work performed by employees in female job classes”. The Act is administered through the Pay Equity Commission, which is comprised of the Pay Equity Office and the Tribunal. The Act applies to public sector employers and private sector employers with ten (10) or more employees in Ontario. It covers both full-time and part-time employees.

4Section 8 of the Act, however, provides for certain exceptions. This application for judicial review relates to the exclusion available to employers under subsections 8(3) and 8(4) of the Act where a position is designated as providing casual employment. Section 8(3) states:

“A position that an employer designates as a position that provides employment on a casual basis may be excluded in determining whether a job class is a female job class or a male job class and need not be included in compensation adjustments under a pay equity plan.”

Section 8(4):

“A position shall not be designated under subsection (3) if,

(a) the work is performed for at least one-third of the normal work period that applies to similar full-time work;

(b) the work is performed on a seasonal basis in the same position for the same employer; or

(c) the work is performed on a regular and continuing basis, although for less than one-third of the normal work period that applies to similar full-time work.”

5The Tribunal adopted the third possible approach to s.8 that was put before them which revolves around “the meaning of the term ‘the work’ in subsection 8(4) rather than the term ‘position’.” The Tribunal found that the critical concept in subsection 8(4) is “the work” and that the work of the position is all the hours in which it is performed.

6The Tribunal preferred this approach because it was consistent with the overarching principles of the Act. The Act requires “a focus on the value of the work performed and not on the circumstances of the individual persons performing it.” Moreover, the Tribunal held that this approach was practicable as both an employer and an employee can “predict with greater certainty in advance of the date on which work is to be performed whether it is payable at a casual rate or a pay equity adjusted rate.”

7The Tribunal, applying this approach, found that “it is clear on the evidence that Circle of Life dispatched health care aides on a regular and continuing basis to perform work in the Hospital. The fact that different health care aides may have been dispatched at different times does not alter the fact that the work was consistently performed.” Having found “the work” in question, that of a health care aide dispatched to the hospital, was performed on a regular and continuing basis, the Tribunal concluded that “pursuant to clause 8(4)(c) of the Act, the position of these health care aides could not be designated as casual pursuant to subsection 8(3) of the Act.”

8The Tribunal stated :

“30. The second possible analysis is the one proffered by Circle of Life and summarized in paragraph 24 above. The difficulty with this argument is that it appears to the Tribunal statistically suspect and inconsistent to treat “position” as encompassing all the health care aides dispatched by Circle of Life, but then to average their hours on an individual basis. This argument also seems to disregard the fact that the critical concept in subsection 8(4) is “the work”. Surely “the work” of the “position” is all the hours in which it is performed. Finally, as does the approach considered above, this analysis does not permit an employer to determine whether a position is one providing casual employment except on an ex post facto basis. For these reasons, we also reject the second approach.

31. The third possible analysis is to focus on the meaning of the term “the work” in subsection 8(4) rather than on the term “position”. Because subsection 8(4) is disjunctive, only one of (a), (b) or (c) need accurately describe the “work” for the designation of it as casual to be inappropriate. Focussing on (c), it is clear on the evidence that Circle of Life dispatched health care aides on a regular and continuing basis to perform work in the Hospital. The fact that different health care aides may have been dispatched at different times does not alter the fact that the work was consistently performed. This is essentially the basis on which the Review Officer made her Order.

32. The appeal of this approach outlined in paragraph 31 above is that it appears consistent with the overarching principles of the Act because it focuses on the value of the work performed and not on the circumstances of the individual persons performing it. It also allows for uniform treatment of the health care aides (unlike the first approach), and enables employer and employee to predict with greater certainty in advance of the date on which work is to be performed whether it is payable at a “casual rate” or a pay equity adjusted rate. For these reasons, the Tribunal finds that the work performed by the health care aides dispatched by Circle of Life was performed on a regular and continuing basis. Consequently, pursuant to subsection 8(4)(c) of the Act, the position of these health care aides could not be designated as casual pursuant to subsection 8(3) of the Act.”

9Before us, counsel agreed that the standard of review to be applied to the Tribunal’s decision is one of patently unreasonable. The decision under review is that of a unanimous tripartite Tribunal. It is a special Tribunal. It is interpreting the very question put to it by the parties.

10The Tribunal, in making its decision was interpreting and dealing with legislation that embodies questions of employment law, labour law, human rights and compensation. We observe also that s.30 of the Act has a strong privative clause.

11After reviewing the record and hearing the submissions of counsel, we cannot say that the Tribunal’s decision was patently unreasonable. Therefore, the application for judicial review is dismissed.

12I have endorsed the back of the application record as follows: “This application is dismissed for the oral reasons recorded this date. Costs fixed at $2,500.00, payable by the applicant to the respondent, Tribunal, if demanded.”

O’DRISCOLL J.

THEN J.

FERRIER J.

Date of Reasons for Judgment: April 6, 2004

Date of Release: April 16, 2004

COURT FILE NO.: 425/03

DATE: 20040406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT