Ontario Nurses Association v. Regional Municipality of Haldimand-Norfolk, 1989 CanLII 1452

0001-89 Ontario Nurses Association, Applicant v. Regional Municipality of Haldimand-Norfolk, Respondent; Haldimand-Norfolk Regional Board of Commissioners of Police, Other Party

Before : Janis Sarra, Vice-Chair; Sharon Laing and Geri Sheedy, Members

Appearances: Mary Cornish, Felicity Briggs, Noelle Andrews, Lawrence Walter and Anne Marie Delorey for the Applicant; Paul Wearing and Bill McDougall for the Respondent; David Ivey and Stan Floras for the Haldimand-Norfolk Regional Board of Commissioners of Police.

Cite As: Haldimand-Norfolk (No.1) (1990), 1 P.E.R. 1

Jurisdiction

At the time of the Application the Review Officer had not yet made an order or referred the matter to the Tribunal. The Tribunal considered whether the requirements of either ss. 25(1)(a) or ss. 24(3), preconditions to the Tribunal’s assuming jurisdiction over the complainants, were satisfied. In determining whether a Review Officer hasbeenable to effectasettlement the Tribunalis not to evaluate the substance of the settlement process but is to consider whether there has been a reasonable opportunity for a settlement to occur. Factors will include the nature and extent of pay equity bargaining prior to the application for review services, the length of time at review services, nature and complexity of the issues indispute,the willingnessofbothpartiesto continue settlement discussions,and the mandatorytime frames in the Act. As no order had been made under s.24(3), both elements of s. 25(1)(a) had been met. The Tribunal had jurisdiction to proceed.

Compétence

Aumoment oùlarequêtepour obtenir une audiencea été déposée auprèsduTribunal, l'agentederévision n'avait pas encore donne d'ordre ou renvoyé la question au Tribunal. L'alinéa 25(1) a) oblige le Tribunal àtenir une audiencesil'agent derévisionn'apuamenerlespartiesa accepter unréglement etn'apas donné d' ordre en vertu du paragraphe 24(3). Il incombe au Tribunal de décider si ces conditions ont été remplies. Lorsqu'il détermine si l'agent de révision a pu amener les parties a accepter un règlement, le Tribunal ne doit pas évaluer la substanceduprocessus de règlement mais ildoit déterminer s'il existait une possibilité raisonnable de faire intervenir un réglement. Le Tribunal doit tenir compte des facteurs suivants :la nature et l'envergure des négociations en matière d' équité salariale avant la requête en vue d'obtenir les services d'un agent de révision, la durée de la période que les parties ont passée devant l’agent de révision; la nature et la complexité des questions litigieuses; le désir des deux parties de poursuivre les discussions en vue d' en arriver a un règlement, et les délais obligatoires imposés par la Loi. Étant donné qu'aucun ordre n'avait été donné en vertu du paragraphe 24(3), les deux exigences de 1'alinéa 25(1) a) étaient remplies. Le Tribunal avait compétence pour entendre la plainte.

DECISION OF THE TRIBUNAL, APRIL 25, 1989

1. This is an application by the Ontario Nurses Association that the Respondent, the Regional Municipality of Haldimand-Norfolk has acted contrary to the Pay Equity Act, 1987 and in particular sections 4, 5, 6(1), 7, 12, 13 and 14 of the Act. The Haldimand-Norfolk Regional Board of

Commissioners of Police is seeking status as a party. The Canadian Union of Public Employees filed a response; however the Tribunal noted its letter of April 19, 1989 that it had decided not to participate in the proceedings.

2 The Tribunal was in receipt of the applicationandresponsesonallthefacts,issues and events in this case. A hearing was held on April 20, 1989 to hear argument on two preliminary matters; whether the Tribunal had jurisdiction to hear the complaint and whowasaproperpartyinthematterbeforeus. It was agreed that the Haldimand-Norfolk Regional Board of Commissioners of Police ("the Board of Commissioners") hadstatus tomakesubmissions onthe questionofjurisdictionand who isa proper party.

3 Both the Regional Municipality of Haldimand-Norfolk ("the Municipality") and the Board of Commissioners challenged the jurisdiction of the Tribunal to hear the complaint. There are essentially two questionsofjurisdiction. First, does the Tribunal have jurisdiction to hear and decide the application under subsection25(1)(a) ofthe Act asofthedateofthe application. Secondly,inlightofthesubsequentreview officer'sorderofApril6, 1989, does the Tribunal have jurisdiction to hearand decidethe complaint under subsections 24(6) and 25(1)(b) of the Act.

4 At the outset the panel heard submissions on the Respondent's right to have a court reporter. Counsel for the Respondent advised the Tribunal that he had retained the services of a court reporter for his own use,that the transcript would be the property ofthe Municipality, thatitwasanaid to Counseland thatthe proceedingswereopentothepublic. After submissions by the other parties, it was agreed that the hearing waspublic and thatthe transcriptdid notformpartofthe official record. Counsel for the Respondent gave an undertaking that he would make available to the parties any part of the transcript at any time in the proceedings at cost. TheTribunalnotedthatthetranscriptsdonotformpail of the official record and that the panel would be relying on its notes in its determination of the issues in this matter.

THE FACTS

1The following facts are not in dispute. The parties had been bargaining pay equity for some time. Documents filed with the Tribunalindicateanextensive historyofnegotiations foralmost one year prior to theapplicationtoReviewServices. On December 23, 1988, the Ontario Nurses Association ("ONA" or the "union") made application to Review Services under section 22, alleging that there has been a contravention of the Pay Equity Act, 1987 (Exhibit 1). By letter dated December 28, 1988 the case manager of the Review Services Branch, Pay Equity Commission notified ONA that a review officer had been appointed. On January 9, 1989, ONA submitted to the review officer and to the Respondent a detailed statement of facts and issues in the complaint and 42 documents relating to the pay equity bargaininghistorybetweenthese parties. The covering letter (Exhibit 2) asked that the matters in dispute be determined as quickly as possible so that pay equity negotiations could be resumed to ensure parties could meet the January 1, 1990 posting deadline. These documents are virtually the same as those that now form the Applicant's filings before this panel with the exception of references to the Review Services process, the application to the Tribunal and the order that occurred subsequent to the application.

2From December 28, 1988 to early March, 1989 meetings and discussions were held between the review officer and the parties. On March 9, 1989 ONA made anapplication requesting a hearing to the Pay Equity Hearings Tribunal that the "matter has not been settled by a review officer, nor has there been anorderordecision". The Municipality and the Board of Commissioners both filed full responses on April 5, 1989. Both responses challenged the jurisdiction of the Tribunal to hear the complaint. On April 6, 1989 the review officer issued an order to the parties (Exhibit 4).

JURISDICTION

1 The panel had the benefit of extensive and thoughtful submissions from counsel. The parties, sensitive to the issue of not arguing the substance of the review officer's settlement attempts, instead directed their submissions to the dispute resolution mechanism envisioned by the Act. It is natural that in the early interpretationofanynewstatute,submissions onthe meaningofanyprovisionwillbefairly wide sweeping, as the parties have no case law upon which to base their arguments. We summarize here only the arguments most helpful to us in our deliberations; however, in coming to our decision we carefully considered and weighed all of the submissions made at the hearing.

2 Although a number of sections of the Act were referred to, the essential debate arose out of the meaning of section 25(1) of the Pay Equity Act, 1987 which states:

25(1) The Hearings Tribunal shall hold a hearing,

(a) if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24(3) ;

(b) if a request for a hearing, as described in subsection 23(4) or 24(6), is received by the Hearings Tribunal; or

(c) if a review officer refers a matter to the Hearings Tribunal under subsection 24(5).

and subsection 24(6) of the Act with respect to the right of the Applicant to come to the Tribunal after an order is issued:

24(6) An employer or bargaining agent named in an order under this section may request ahearingbeforethe Hearings Tribunalwithrespectto the order,and,wherethe order was made following a complaint but the complaint has not been settled, the complainant may also request a hearing.

THE APPLICANT'S ARGUMENT

9. Counsel for the Applicant, Mary Cornish, submitted that there are three independent mechanisms for the Tribunalto take jurisdiction. First, she submitted that the Tribunal is mandated to hold a hearing under subsection 25(1)(a) where two preconditions have been met; that the review officer is unable to effect a settlementofacomplaintandthatan order hasnotbeenmadeundersubsection24(3). Counsel submitted that both prerequisites existed atthetimeoftheMarch9,1989application. She argued that the language

ofsection25(1)(a)isclear,and thatunlikesubsections 25(1)(b) or (c)thereisno referencein25(1)(a)that notification by a review officer of her inability to effect a settlement is a prerequisite to the holding of a hearing. She submitted that where the language of a statute is unambiguous, it is improper to imply a prerequisite that is not specifically stated.

2 Ms.Cornishsubmittedthattoaccepttheproposition that review officers can absolutely control the dispute resolution process, would deny parties access to the full hearing process as set out in the Act and clearly such a limitationonthe Tribunal'sjurisdictionhasnotbeen expressly provided for or contemplated by the Legislature. She submitted that where the Act sets out strict time frames for achieving pay equity for the women of Ontario and specific enforcement mechanisms for achieving compliance, it is not consistent withthe scheme,structureand purpose ofthe Act to permit Review Services to prevent a party from proceeding to the Tribunal level where necessary. Such an approach in the Applicant's case would jeopardize the parties'abilitytocomplywiththe time frame for postingthe payequityplanand tomakethe necessary pay adjustments by January 1, 1990, less than 9 months away.

3The Applicant also suggested that it was not appropriate to discuss the quality of settlement discussions but submitted that it was sufficient for the Applicant to show that a complaint was made, that a review officer had reasonable opportunity to effect a settlement and at that point they have a right to proceed to the Tribunal if the review officer has not made an order.

4Counsel submitted that it was reasonable to require the review officer to exercise her duties to investigate the complaint within a reasonable time frame. She submitted that in this case the review officer's investigative role was simplified because of the extensive filings in the application and the extensive bargaining that had occurred prior to the application. She pointed out that although the Applicant had been willing to participate in settlement discussions, the complaint had been filed not seeking assistance in negotiations, but rather as a first levelofenforcement of the Applicant's rights under the Act. The Applicant filed under section 22 of the Act alleging contraventions of the Act, asking Review Services to determine themattersindispute and to grant relief. Counselarguedthattwomonthshadpassedsincethefilingofthe extensive documentation and the union was entitled to have the issues adjudicated in a reasonable time frame.

5Counsel's second ground was that the Tribunal has clear jurisdiction as a result of the review officer's orderissuedonApril6,1989. She asked the Tribunal to proceed on the basis of the Applicant's April 12, 1989 letter (Exhibit 3), to the Tribunal seeking to amend the application to request a hearing under an additional ground, under subsection24(6) and subsection25(1)(b) ofthe Act. Counsel submitted that on the basis of the order, the Applicant has two independent rights to a hearing. Under subsection 24(6), ONAwasanamedbargainingagentinan orderandthereforehadtherighttoahearing. Under the second part of subsection 24(6), an order was made following the complaint by ONA but the complaint has not been settled and the complainant is entitled to request a hearing. She also submitted that the order of April 6, 1989 is further reinforcement of the subsection 25(1)(a) argument that the officer had been unable to effect a settlement.

6Ms. Cornish spoke of the sometimes "inelegant construction" of the Act. In reply to the Respondent's argument that the ordercannotbe reviewedbythe Tribunal, she suggested that it would be aludicrous situationthata complaint could be dismissed at the review officer stage and therewould be no right to a hearing at the Tribunal.

THE RESPONDENT'S ARGUMENT

1 Counsel for the Respondent,PaulWearing,agreedthatthefactssubmittedbytheApplicant on this question were not in dispute. He submitted that the application by ONA cannot be brought under any subsectionofsection25(1). He agreed with the Applicant that at the time of the March 9, 1989 application to the Tribunal the matter had not settled, nor was there a decision or order of the review officer. However, he argued that for ss. 25(1)(a) to be met, it is the review officer who must determine that she has been unable to effect a settlement.

2 Counsel traced the duties and powers of the review officers under section 34 and other sections of the Pay Equity Act, 1987 and, utilizing section 30 of the Interpretation Act, R.S.O. 1980, c. 219, he distinguished between sections where the review officer "may" undertakeanaction, maybeingpermissive and those duties described by the Act as "shall" which he submitted were to be construed as imperative. Counsel argued that the review officer has a discretionary entitlement by the Act to try and effect a settlement, but that it is not mandatory; and that it is for the review officer to decide that she could not effect settlement.

3 The second branch of Mr. Wearing's argument was that the order of April 6, 1989 was not subject tointerpretationbytheTribunal. He suggested that the order does not specifically state that the officer was unable to effecta settlement and that the Tribunalcannotinferfromthe order the stateofmindofthe officer that she had decided she was unable to effect a settlement. He argued that there was no requirement by the review officer to decide all outstanding matters if she was unable to effect a settlement. He suggested thatundersection23(2) thatthe reviewofficershallnotifythe Tribunalthat a settlement cannot be effected and that since the order was silent on this, subsection 25(1)(a) could notbe relieduponbythe Applicant.

4 Respondent Counsel submitted that since there was no mandatory requirement on Review Services to effecta settlement,and sinceinthe case before us the review officer dismissed the complaint instead of settling, the Applicant has no recourse to the Tribunal. He submitted that because of the discretion to settle ornot,thereis clearly no remedy under thisstatutewhenacomplaintisdismissed. He argued that the only exception was under subsection 23(3) where the review officer has found that the complaint is trivial, frivolous,vexatious or made in bad faith or that it is not within the jurisdiction ofthe Commission, and that none of those conditions form part of this case. He argued that only in those instances where the officer gives merit to a complaint, that the party losing has the right to a hearing of the Tribunal. Mr. Wearing argued that the union is estopped from raising complaints of disclosure and bad faith bargaining already adjudicated on by the review officer.

5 In response to submissions by the Applicant on the importance of the time frames and the need for expeditious consideration of matters, Counsel for the Municipality submitted that section 24(4) has given the review officer the authority to extend the mandatory posting dates.

6 Counsel also argued that the order of April6,1989didnotincludeadeclarationasrequiredby the wording of subsection 24(1) that the officer was of the opinion that a pay equity plan was not being prepared as required by PartII,and thatsincethis preconditionwas not met, the review officer may have incorrectly exercised her authority.

7Finally, Counsel argued against amendment oftheapplicationbecausetheemployerwasentitledto know what case he had to meet. He did not however take issue with the applicant's submission that the issuesand the filingsremainidentical, withthe exceptionofthe addition of the April12, 1989letterseeking to amend and seeking additional remedies.

THE BOARD OF COMMISSIONER'S ARGUMENT

1 Counsel for the Board of Commissioners, David Ivey, made submissions on the question of jurisdiction, suggesting that at the time of the March 9, 1989 application to the Tribunal the review officer had not declared that she was unable to effect a settlement and thus the Tribunalhadno jurisdiction under section 25(1)(a) of the Act.

2 With respect to the order issued on April 6, 1989 Mr. Ivey submitted that the role of the review officer differed from that of labour relations officers under the Ontario Labour Relations Act, in that althoughbothofficersinvestigateand attemptto effect a settlement, the pay equityofficershave the power in some instances to issue orders. He adopted Mr. Wearing's argument that the Legislature did not give the right to appeal a dismissal of a complaint at the review officer stage. He suggested that the April 6, 1989 order was not so much to effect a settlement as to get the parties working again. He suggested that althoughthe document wascalledanorder,inacourtitwould have beena decisionwiththe order attached and that we should consider the order that portion of the document directing the parties to bargain and therefore the Applicant cannot ask for a hearing under section 24(6) of the Act.

3 Counsel for the Board of Commissioners also supported Mr. Wearing's submission that the review officermighthave exceeded herjurisdictioninissuingthe order, because she had not met the precondition of section 24(1) that in her opinion a plan was not being prepared as required by Part II of the Act.

DECISION

JURISDICTION UNDER SUBSECTION 25(1)(a)

25. In considering whether the Tribunal has jurisdiction to hear this application under subsection 25(1)(a),theTribunalhascarefullyweighedthesubmissionsmadebycounsel. Counsel for the Respondent Municipality drew our attention to the preamble of the Pay Equity Act, 1987 and we find this a helpful place to begin. The preamble states: "whereas it is desirable that affirmative action be taken to redress

genderdiscriminationinthe compensationofemployeesemployedin female job classes in Ontario ...”this Act is enacted. The Act places a positive obligation on employers and unions to bargain and implement payequity. As Respondent Counsel pointed out, the thrust of the statute is to accomplish affirmative action to redress systemic wage discrimination; that it requires a negotiated process, and, where appropriate, mediationofdisputes. He drew some analogy to the labour relations context set out in the Ontario Labour Relations Act and the spirit of promoting the negotiated settlement of pay equity plans.

2 We agree with these starting premises. The construction of the Act is to provide for and facilitate thenegotiationofpayequity. Similar to the labour relations context, there is a dispute resolution mechanism whichinvolvesinvestigation of complaints, efforts at mediating a settlement, and ifnecessaryamechanism to hear the merits and enforce the basic tenants of the Act. There are also, however, several differences. The first is found in sections 4 and 5 of the Pay Equity Act, 1987 which includes the purpose clause:

4(1)The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.

(2) 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.

5(1) For the purposes of this Act, the criterionto beapplied in determining value of work shall be a composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed.

1 We start with this purposive framework in our analysis of the dispute resolution and enforcement mechanisms under the Act. The Act is a proactive statute, which requires employers and unions to take specific actiontoredress systemic wage discriminationand whichsetsthe standards by whichsuchactions will be measured. Unlike the normal labour relations context, there is a substantive interest in the content of the negotiations once parties seek to come to the Pay Equity Commission for enforcement of the Act. Inaddition, unlikethe usuallabour relations context,the PayEquityAct,1987 setsout timetablesbywhich plans must be negotiated and wage adjustments must begin. Although negotiations are the principle vehicle to determine payequityplans inanunionizedworkplace,wehave learnedfromthe existinglabour relations context that there will inevitably be disputes and that there is a need for their resolution in an effective complaint resolution mechanism. After settlement attempts have been unsuccessful, parties are entitled to have the merits of their complaint adjudicated expeditiously.

2 With respect to submissions by Counsel on mandatory time frames, we are not persuaded by Respondent Counsel's argument that the right under subsection 24(4) to extend the dates meant that the Legislature intended as a matter of course that the time limits set by the Act would be abridged by the parties or extended byReviewServices. Counsel for the Respondent himself admitted the importance of working towards the timetables set out in the Act.

3 We concur with RespondentCounsel'ssubmissionthatweshouldapplythe plain words of the Act as per the Interpretation Act,R.S.O. 1980, c.219. However, in applying those words, we cannot accept the argument that the determination of our jurisdiction in any way constrains the activities of the review officer. We accept that the words "shall" and "may" should be construed as imperative and discretionary respectively. In accepting that however, we are not persuaded that the interplay of these review officer duties under the Act in some way by-passes the right of parties to a full hearing on the merits of the case. The review officer is the first level of investigation and in some instances adjudication. However we note subsection 34(4) of the Act that the Statutory Powers Procedures Act, R.S.O. 1980, c.484, does not applytoareviewofficer. The Hearings Tribunal is the primaryhearingsmechanismunderthe PayEquity Act, 1987 and the only adjudicative mechanism falling under the Statutory Powers Procedures Act,

R.S.O. 1980, c.484. It is the only adjudicative forum where a complainant has the right to lead evidence and make submissions in a full hearing, subject to the rules of natural justice.

1 The language of subsection 25(1)(a) is clear and unambiguous. The Tribunal is required to hold a hearing if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24(3). Where the legislation required preconditions to the holding of a hearing, they are expressly stated in section 25. An example of this is subsection 25(1)(c) which is dependent upon the review officer making a referral. No such prerequisite for the review officer to make a decision, notification or referral exists in subsection 25(1)(a) and it would be inappropriate to read such a requirement into the subsection. Instead we must look to the wording of the section and to the preconditions that are specified, namely that the review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24(3).

2 In the case before us, it was agreed by all parties that as of March 9, 1989 no order had been made under subsection 24(3) and we need not consider that precondition any further. It was also agreed by all parties that a settlement did not exist at the time of the application. What is at issue however, is whether the review officer at that time was unable to effect a settlement.

3 We have listened to the submissions made by counsel regarding who decides that a review officer is unable to effect a settlement. There is no dispute that the Review Services is by the construction of the Act, the front line investigative and settlement mechanism of the Pay Equity Commission. Section 22 contemplatesthatanyemployer,employeeor group of employees or their bargaining agent ifany, mayfile acomplaint withthe Commissionthattherehasbeena contraventionofthe Act, the regulations or an order of the Commission. Section 23 clearly envisions that a review officer shall investigate the complaint and mayendeavourtoeffectasettlement. Counsel spent considerable time tracing the mandatory investigative and discretionary settlement duties of officers, as well as their adjudicative functions where they exist.

33. The role given to the review officer is a reflection of the existing labour relations framework in this province where settlement of disputes without resort to third party adjudication is clearly the preferable goal. The Legislature has recognized that parties must continue to foster healthy labour relations while at the same time meeting their obligations under the Pay Equity Act. Where parties in a collective bargaining relationship cannot agree, the review officer's investigative and mediative skills are utilized to attempt a resolution. The review officer differs from other labour relations officers in that in some parts of the Act

she also performs a first level adjudicative function which requires the determination of the merits of a dispute.

4 Turning to the wording of subsection 25(1)(a), once a party has utilized the dispute resolution process as envisioned by sections 22 and 23, dotheyhave the right to ask the Tribunal to hear the case? The wording of subsection 25(1)(a) requires the Tribunal to decide if two preconditions have been met. If they are met, there is an obligation to hold a hearing. Given this mandatory obligation, in the context of a request for a hearing under section 25(1)(a), we find that it is the Tribunal that must decide if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24(3).

5 Having said that, we are sensitive to the vital role that review officers play in the process and we do not wish to undermine that role in any way in the determination of our jurisdiction to hear a case. In determining whether an officer has been unable to effect a settlement, we do not intend to enter into an analysis of the effectiveness of the Review Services process, norintoanyinvestigationofthe meritsof this caseorsubstanceofsettlementattempts. It is not appropriate in the contextofthismatterfortheTribunal to be monitoring or evaluating settlement proposals.

6 In our view, we see the threshold question as "has there been a reasonable opportunity for a settlement to be effected”? If the answer is “no”, then parties clearly need to continue in the review services process. If "yes", then we as a Tribunal could find that an officer has been unable to effect a settlement and that the parties have a right to a hearing on the complaint.

7 In assessing what is a reasonable opportunity, several factors must be considered. The factors, although not an exhaustive list, include: the nature and extent of pay equity bargaining prior to the application to review services; the length of time the parties were at review services; the nature and complexityofthe issuesindispute;thewillingnessofbothpartiesto continue discussions wherea settlement seems possible; and the time remaining until the mandatory time frames required by the Act. If after assessing these factors, the Tribunal decides that parties had a reasonable opportunity to settle with the assistanceofa reviewofficer,the Tribunal could find that an officer hadbeenunable toeffecta settlement. Assumingthe otherpreconditionundersubsection25(1)(a)hadbeenmet,itwould thenberequiredtohold a hearing. Such an approach appears to balance the rights of parties to a fair and expeditious resolution of their complaint, while recognizing the need for Review Services to have the opportunity to investigate and endeavour to effect a settlement.

38. Turning to the facts of this case, can the Tribunal find that the review officer was unable to effect a settlement at the time of the March 9, 1989 application to the Tribunal? Applying our threshold question of whether the review officer had a reasonable opportunity to settle the complaint, we note that the parties had been bargaining pay equity for about one year prior to the complaint to Review Services. There has been an extensive history of bargaining prior to the complaint. However, we also note that the issues are numerous and somewhat complex. It is clear that the Applicant filed the application at Review Services withaviewtohavingtheissuesdeterminedasexpeditiouslyaspossible. It was undisputed that the review officerhadthe benefit inearlyJanuaryofhavingcomprehensive documentationonthe issuesindisputeand the history of pay equity bargaining between these parties. Meetings and discussions occurred for more

than two months. The parties did not express a willingness to continue discussions with a view that a settlement was forthcoming. In looking at the fifth factor, we note that at the time of application, the parties were 9 months away from their mandatory posting date.

8We were cognizant of the need in a first adjudicative look at these sections of the law not to unnecessarily establish broad sweeping tests or to set time lines that are unduly hard or overly technical. Itisnotour intentionto setrigid time framesbywhich to judge whetherthe reviewofficerisunable to effect a settlement. Rather, the passage of time at Review Services in any one case must be weighed as one of several factors. The Tribunal, although not relying on the April 6, 1989 order, did note its existence as indication that at least at a point shortly after the application the review officer had been unable to effect a settlement. Having weighed all of the factors, the nature and extent of bargaining, the nature of the applicationand the complexityof the issues, the time spent at Review Services,the willingnesstocontinue discussions where settlement seems possible, and the mandatory time frames; on balance we find that a reasonable opportunity did exist to settle the application and we find that the review officer was unable to effectasettlement. Given that there is no dispute that the secondpreconditionofsubsection25(1)(a)had been met, namely that there was no order under subsection 24(3), the Tribunal finds that it has jurisdiction to hear this application under section 25(1)(a) of the Act.

JURISDICTION UNDER SUBSECTION 25(1)(b)

1 We now consider the question of jurisdiction arising out of the order issued by the review officer on April 6, 1989. Under subsection 25(1)(b) the Tribunal is required to hold a hearing if a request for hearing as described by subsection 24(6) is received by the Tribunal. Subsection 24(6) clearly entitles a party named in an order the right to request a hearing. In this case, there is no dispute that the order was issued. We are not persuaded byargumentsofcounselthattheorderisonlythatpartofthe document that directs the parties to resume bargaining. To interpret the order that way would be to ignore the fact that on its face,the entiredocument istitled"PayEquityCommissionReviewServices Order in the matterofthe Pay Equity Act, 1987 and the Ontario Nurses Association, Applicant and the Regional Municipality of Haldimand-Norfolk, Respondent". With respect to counsel's argument that the review officer may have incorrectly exercised her authority, we find that it is not necessary at this point to decide this; for purposes of the jurisdictional question we need. only consider whether anorder existed, and whether as a result of that order, the Applicant was entitled to request a hearing.

2 The Tribunal finds that as of April 6, 1989 an order existed and that the Applicant has the right to requesta hearingbeforethe Hearings Tribunalontwoseparate groundsundersubsection24(6)ofthe Act. The ONA as a bargaining agent named in the order is entitled to request a hearing. Secondly, under the second part of subsection 24(6) the order was made following a complaint by ONA, the complaint was not settled and the complainant may request a hearing.

42. Counsel for the Applicant sought to amend its original application to request a hearing on the additional grounds pursuant to subsections 24(6) and 25(1)(b). After carefully considering submissions on whether ornotthe applicationshould beamended,onbalance we believe that it is only common sense toallowtheamendment. The Applicant relies on all its original filings in support of the amended application

as well as the letter of April 12, 1989 seeking to amend. To require the Applicant to withdraw and refile and serve all parties the same materials again is not practical. The parties themselves have indicated that theywishtoavoidadditional cost and delay. Thereisnoprejudicetotheotherpartiesgiventhattheyhave alreadyfully responded to the application and will be given an opportunity forfurtherresponsearisingout of the order.

3 We therefore direct that the application be amended to add the Applicant's request for a hearing pursuant to subsections 24(6) and 25(1)(b) ofthe Pay Equity Act, 1987 and to include the April 12, 1989 letter to the Tribunal as part of the applicationincludingamendingthe reliefsought.We alsodirect that the other parties in this proceeding shall within seven calendar days ofthe date ofthis decision, fileanyfurther responsetheymaywisharisingout ofthe amendmentsto the application, and wedirectthe partiesto serve the other parties as set out in the Tribunal's Rules of Practice.

PARTIES TO THE PROCEEDING

1 The Tribunal received submissions on whether the Haldimand-Norfolk Regional Board of Commissioners of Police should have status as a party to these proceedings. All parties agreed that the Board of Commissioners had status for purposes of the jurisdictional argument.

2 Counsel for the Board of Commissioners submitted that it should have status in the question of what is the establishment. He submitted that if the Board is found to be part of the establishment for pay equity purposes, then members of the police force could be suggested as comparators by the applicant union. He requested that he reserve his right to participate in the rest of the proceedings. When asked what his interest in the rest of the proceedings was, he suggested that although he may not have an interest in the good faith bargaining dispute, he might have an interest in such issues as the gender neutral system of comparison.

3 Counsel for the Board of Commissioners suggested that the question of what is the establishment is a distinct issue and he requested that the hearing be bifurcated into two parts; first that the Tribunal hear evidenceand argument on the question of what is the establishment and thenonthe restofthe meritsofthe application. He submitted that if the Board of Commissioners is found not to be part of the establishment, itsinterestendsthereand the Board should notbeforcedto bear the costs ofa lengthyhearingonthe entire case. He did argue, however, that if the Tribunal decided not to hear the question of what is the establishment first, thus necessitating his attendanceto allofthe proceedings,thathe should have full rights to party status.

4 Counsel for the applicant union did not object to the right of the Board of Commissioners to have partystatusforthepurposeofdeterminingwhatis the establishment. She arguedhoweverthattherewere many issues in the application and that the Board of Commissioners did not have an interest in the case beyond the question of what is the establishment. She submitted that if the Board of Commissioners is successful and is found to be a separate establishment, it has no status in the remaining proceedings; and if it is unsuccessful, then it would form part of the Respondent.

5 Ms. Cornish also argued that the question of what is the establishment could not be separated from all of the issues in the case, and to hear that question first would cause duplication of witnesses and evidence. She expressed concern that the Respondent would have the opportunity to cross examine her witnesses twice. She also submitted that there was a need to have these issues decided quickly, and that to hear. and decide the question of establishment first would cause unnecessary delay.

6 Counsel for the Municipality submitted that it was premature to decide who the parties were. He expressed concernabout thedifficultyofseparatingthe issue ofestablishment and suggestedthatthe Board of Commissioners be given status for the entire proceeding.

7 There was no dispute between the parties that the Board of Commissioners is entitled to party status in determining what is the establishment. By Counsel for the Board ofCommissionersownsubmission,if it is not part of the establishment, the Board's interest ends there. On balance however, we are not persuaded that if the Board of Commissioners is found to be part of the establishment, it has in this application, an interest as a party separate from that of the Respondent Municipality.

8 We are persuaded byMr.Ivey'ssubmissionthatweproceedfirstonthe question of establishment. Determining this question first willgivedirectiontotheparties. Given the Board of Commissioner's limited interest in these proceedings, it should not be unnecessarily costly for the Board. It makes good sense to proceed first on the issue of establishment. We are not persuaded by the delay argument made by Counsel. TheTribunaliscommittedtoanexpeditioushearinganddecisionmaking process. Just as we commented on the need to keep the process of pay equity negotiations and dispute resolution moving in a fair and expeditious way, so too isthe Tribunalcommittedto hearing and deciding issues in a manner that will best allow the parties to meet their obligations to negotiate and implement a pay equity plan.

9We are also not persuaded by the argument that there will be a duplicationofevidence. The issue of what is the establishment is adiscreetissue,and evidencecanbe leadand cross examined on that issue withthe understandingthatotherissuesindisputewillbe dealt withinevidenceand argument afterthe issue of establishment is disposed of.

10The style of cause is therefore amended to include the Haldimand-Norfolk Regional Board of CommissionersofPoliceasa partyforthe purposes ofdeterminingjurisdictionoftheTribunalinthis matter and for purposes of determining what is the establishment. We direct the parties to lead evidence and argument onwhatistheestablishment. We also direct the Applicant and the Respondent to lead evidence and argument on the remaining issues in this application immediately thereafter.

11At the end of the day, Counsel for the Applicant raised additional matters preliminary to the merits of the case. It wasagreedbythepartiesthattheywouldtalkinadvanceofthenextdayofhearingandthat ifnecessarywewouldhearsubmissionson these preliminary matters at that time. The Registrar ishereby directed tosetadditionaldaysofhearingassoonaspossible. This hearing will resume on May 3, 5, 8 and 15, 1989 and continue on such dates as set by the Registrar.