CUPE Local 1999 v. Lakeridge Health Corp., 2011 ONSC 2804

CUPE Local 1999 v. Lakeridge Health Corp.

CITATION: CUPE Local 1999 v. Lakeridge Health Corp., 2011 ONSC 2804

DIVISIONAL COURT FILE NO.: 513/10

DATE: 20110520

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 1999 Applicant

– and –

LAKERIDGE HEALTH CORPORATION and the PAY EQUITY HEARINGS TRIBUNAL Respondents

COUNSEL: Mary Cornish, for the Applicant Michael A. Hines, for the Respondent, Lakeridge Health Corporation Leonard Marvy, for the Respondent, Pay Equity Hearings Tribunal Fay Faraday, for the Proposed Intervenor, Equal Pay Coalition (moving party)

HEARD: April 19, 2011

LEDERER J.:

Introduction

1The moving party, the Equal Pay Coalition ("Coalition"), seeks an order allowing it to intervene in a judicial review of a decision of the Pay Equity Hearings Tribunal ("Tribunal").

2The Pay Equity Act, R.S.O. 1990, c. P-7 ("Act") is the legal instrument by which the Province of Ontario has directed the resolution of a significant social policy issue, pay discrimination between men and women. The purpose of the Act is stated to be:

…to redress systemic gender discrimination in compensation for work performed by employees in female job classes.¹

3The Act outlines a program or process by which its goal is to be accomplished. It is generally described as follows:

Systemic gender discrimination in compensation shall be identified by undertaking comparisons between each female job class in an establishment and the male job classes in the establishment in terms of compensation and in terms of the value of the work performed.²

Background

4In this case, the applicant, Canadian Union of Public Employees Local 1999 (" Union"), complained that the respondent, Lakeridge Health Corporation ("Lakeridge"), failed to "establish and maintain compensation practices that provide for pay equity" and, thus, was in violation of s. E of the Act.³ The Union is concerned that women start at a lower salary, get a different pay as they move through the applicable grid and take longer to reach the top rate of pay. The Tribunal dismissed the complaint. It is this decision that is the subject of the judicial review.

The Rule

5The motion is brought, pursuant to Rule 13.03(1) of the Rules of Civil Procedure. The basis upon which a person may be granted leave to intervene as a party is found in Rule 13.01, which states:

(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

6In considering whether to grant intervenor status, the court should consider:

(i) the nature of the case;

(ii) the issues which arise; and,

(iii) the likelihood of the proposed intervenor being able to make a useful contribution to the resolution of the matter without causing injustice to the immediate parties.⁴

Analysis

The Coalition

7The Coalition was formed in 1976. It is made up of organizations that seek the implementation of equal pay for work of equal value (pay equity) both through legislation and collective bargaining. The Coalition is made up of over thirty-five constituent and partner groups across all business sectors, including business (employers), labour (union and non-union workers) and community organizations which represent men and women in Ontario who support pay equity. Its mandate is to work to implement international human rights standards for non-discrimination in pay through both legislation and collective bargaining. An affidavit deposed to by an "active member... since 1984" describes the Coalition as focused on extending and protecting the statutory rights found in the Act through various rounds of legislative amendments and working to secure their effective implementation through advocacy, education and training. It is not disputed that the Coalition has a long commitment to and active interest in pay equity. The nature of its membership demonstrates that, while it will support the position of the Union, it can bring a broader perspective to the hearing.

The Basis for Intervention

8The Coalition seeks to intervene as a friend of the court (amicus curiae). It wishes to address issues set out in the Notice of Application for Judicial Review, in particular:

(a) the relationship between the Act and the Human Rights Code ("Code") and the jurisdiction of the Tribunal to address rights found in the Code as a result of the decision of the Supreme Court of Canada in Tranchemontagne v. Ontario (Director, Disability Support Program)⁵,

(b) the relationship between collective bargaining and the obligations prescribed to parties under the Act, in particular the remedial authority of the Tribunal when wages have been collectively bargained; and,

(c) the interpretation and application of pay equity rights in the context of a wage grid.

9The factum, filed on behalf of the Union, in respect of the judicial review, identifies the Act as remedial human rights legislation. The stated purpose of the Act to which I have referred and its preamble make clear that this legislation is dedicated to redressing gender discrimination in the compensation. The Human Rights Code, R. S. O. 1990, c. H-19 is the primary human rights legislation in Ontario. In dismissing the application of the Union, the Tribunal declined to interpret and apply the Human Rights Code. It held that the Act is a "comprehensive scheme for the redressing of systemic gender discrimination in compensation". In Tranchemontagne⁶, the Supreme Court of Canada held a tribunal can only decline to address a human rights issue if it has been granted authority to decline this jurisdiction. The relationship of the Act and the Human Rights Code is a matter of importance which extends beyond the interests of the parties to this application.

10The wage grids in place are the result of collective bargaining. In the factum filed on its behalf in respect of the judicial review, the Union indicates that it has "raised the issue of equalizing the grids in collective-bargaining with Lakeridge". The factum goes on to say that the Tribunal held that "we cannot conclude that section 7(1) or any other provision of the Act mandates the result urged by CUPE in this case". The Tribunal held that, finding otherwise, could lead to some "practical difficulties and consequences" that are inconsistent with the relationship between the Act and collective bargaining. Equalizing the wage grids "could be quite disruptive of the compensation schedule the negotiating parties agreed to".⁷ The Act indicates that a "pay equity plan that is approved…prevails over all relevant collective agreements and the adjustments to rates of compensation required by the plan shall be deemed to be incorporated into and form part of the relevant collective agreements".⁸ The relationship between the Act and statutory right to bargain collectively and the role of the Tribunal in respect of that relationship is a matter of importance which extends beyond the interests of the parties to this application.

11In the factum filed on its behalf, the Coalition proposes to address the interpretation of the Act "in the context of a wage grid". The submissions it proposes to make step beyond the interests of the particular parties. "Drawing on human rights principles and interpretation of the Act, the Coalition will argue that the Act requires that wage grids, in their entirety, must be free of discrimination."

12In order to demonstrate that it will not unduly delay the judicial review or prejudice the determination of the rights of the parties, the Coalition proposes the following terms to its intervention:

• it will accept the record as it is;

• it will file a factum of no more than 20 pages;

• the factum will be served and filed by such date as the court may determine to be appropriate; and,

• it will be restricted to 30 minutes of oral argument.

13The principal concern of Lakeridge is that the Coalition will not make a useful contribution to the proceedings. It anticipates that much of what the Coalition will say is repetitive of submissions that will be made by the Union and that what is not redundant will add new issues and re-shape the proceeding as it has been undertaken by the parties.⁹

14Counsel for Lakeridge, in his submissions, suggested that there was no special perspective that the Coalition would bring and no submission it would make that could not be made by counsel on behalf of the Union. The contribution of an intervenor need not be unique or distinct from those of the existing parties. The contribution may "overlap" with those of the parties. Where the prospective intervenor is generally aligned with the position of one side, it can still make a useful contribution to the argument of the issues before the court¹⁰.

15The one exception was the intention of the Coalition to introduce international conventions as a means of demonstrating the policy purpose behind the legislation. This would be something new. His client, an operator of hospitals, should not be put to the expense or risk at this stage of the process of having to examine, conduct research on and respond to whatever the Coalition says these conventions add to the issues that will be placed before the Court. The perspective that international experience may bring to bear on the issues to be considered is referred to in the factum filed, on behalf of the Union with respect to the judicial review. The factum suggests that: "Internationally and in Canada, it is recognized that historically men and women have been paid on differentiated pay structures in which women's jobs – often clerical jobs – take much longer to reach the maximum rate than do men’s jobs". The introduction of conventions responding to this may well arise from a different, broader and more comprehensive interest of the Coalition in the issue.

16Counsel pointed out that, while there was one exception, the cases referred to on the motion involve a public party, that is to say, some representative of or agent of government. These situations are not governed by characteristics of the parties, but by the nature of the issues and what the intervenor can contribute.

17To my mind, submissions made on behalf of Lakeridge create an excessively-narrow opportunity for the court to obtain the assistance of those who may bring a constructive contribution to the issues it is asked to resolve. To my mind, the Coalition has a broader perspective, driven by the fact that pay equity is its principal concern and by the variety of members or partners that participate. The limits that are to be placed on the participation of the Coalition mitigate against any prejudice that might be caused by its intervention.

Conclusion

18The motion is granted. The Coalition may intervene, as a friend of the court, on the following terms:

1. The Coalition accepts the record as it is. It is not permitted to adduce further evidence.

2. The Coalition will not seek costs and costs will not be awarded against it.

3. The Coalition will file a factum no less than thirty days in advance of the hearing of the judicial review; the factum shall not exceed twenty pages.

4. The time allotted for the oral submissions of the Coalition are fixed at thirty minutes.

5. Lakeridge may deliver a supplementary factum, if necessary, to respond to matters raised in the factum of the Coalition; such factum to be delivered no less than seven days in advance of the hearing of the judicial review.

Costs

19The Coalition is the successful party. It does not seek costs and, accordingly, no costs will be awarded.

LEDERER J.

Released: 20110520

CITATION: CUPE Local 1999 v. Lakeridge Health Corp., 2011 ONSC 2804

DIVISIONAL COURT FILE NO.: 513/10

DATE: 20110520

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 1999 Applicant

– and –

LAKERIDGE HEALTH CORPORATION and the PAY EQUITY HEARINGS TRIBUNAL Respondents

JUDGMENT

Footnotes

1. 1Act, s. 4(1)
2. 2Act, s. 4(2)
3. 3Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer (s.7(1));
4. 4Regional Municipality of Peel v. Great Atlantic & Pacific Company of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O. R. (2d) 164 (C. A.), at p. 167
5. 52006 SCC 14, [2006] 1 S.C.R. 513;
6. 6Tranchemontagne v. Ontario (Director, Disability Support Program, supra, at paras. 14, 39, 43-46
7. 7Pay Equity Hearing Tribunal Decision, at para. 30
8. 8Act, s. 4(10) and s. 21.5(2)
9. 9Bedford v. Canada (Attorney- General), 2011 ONCA 209, [2011] O.J. No. 1111
10. 10Van Breda v. Village Resorts (6 August 2009), Toronto M37820 (C49188), (C49632) , at para. 16; Regional Municipality of Peel v. Great Atlantic & Pacific Company of Canada Ltd., supra, at paras. 7 & 8; and, Childs v. Desomeux 2003 47870 (ON C.A.), (2003), 67 O.R. (3d) 385 (C.A.), at para. 16; all as referred to in Blue Mountain Resorts Ltd. v. Den Bok, 2011 ONSC 1909 at para. 11.