Ontario Nurses Association v. Regional Municipality of Haldimand-Norfolk, 1989 CanLII 1453

0001-89 Ontario Nurses Association, Applicant v. Regional Municipality of Haldimand-Norfolk, Respondent; 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; W.Graydon Sheppard and Stan Floras for the Haldimand-Norfolk Regional Board of Commissioners of Police.

Cite As: Haldimand-Norfolk (No.2) (1990) 1 P.E.R. 13

Practice and Procedure - Pleadings - Motion to Strike

The Applicant movedtostrikeportions ofthe Responseongroundsthatitcontainedallegations which had notbeenraisedatReviewServices. The Tribunal agreed. A proper defense may not include charges that the Act wascontravenedwhensuchallegations werenotpartofthecomplaintresolutionprocess atReview Services.

Review Services - Stay

The Applicant sought to stay the Review Services order on the basis that it revealed a prima facie error. The Tribunalrefused.ReviewOfficerordersare notenforceable unlessconfirmedbyorder ofthe Tribunal. A stay is unnecessary.

Pratique et procédure - Demande de rayer

Le requérant voulait faire rayer certaines parties de la défense pour le motif qu'elle comprenait de nouvelles allégations contre lui qui n'avaient pas été mentionées à l'étape de la révision. Une défense ne doit pas comprendre des accusations portant que la Loi a été enfreinte lorsque ces allégations ne font pas partie du processus de résolution de la plainte lors de la révision.

Services de révision - Suspension de l’ordre.

Le requérant a tenté d'obtenir une suspension de l'ordre des Services de revision en faisant valoir qu' il contenait une erreur prima facie. Le Tribunal a refuser. La Loi ne prévoit pas la suspension des ordres des agents de révision. Les questions renvoyées au Tribunal sont les questions litigieuses dont avaient été saisis les Services de révision.

DECISION OF THE TRIBUNAL, MAY 11, 1989

1. This is an application by the Ontario Nurses Association (ONA) that the Respondent, the Regional Municipality of Haldimand-Norfolk (Regional Municipality) has acted contrary to the Pay Equity Act, 1987 and in particular sections 4, 5, 6(l), 7, 12, 13 and 14 of the Act. OnMay3, 1989 the Tribunal heard submissionsonseveralpreliminarymotionsandgaveoralrulings. These additional preliminary motions are matters in which the parties are seeking direction from the Tribunal in the context of no prior statutory interpretation.

MOTION TO STAY THE REVIEW SERVICES ORDER

1Counsel for the Applicant, Ms. Cornish, requested that the Tribunal exercise its discretion under section 25(2)(g) ofthe Pay Equity Act, 1987 and stay the decision of the Review Officer dated April 6, 1989. She asked the Tribunal to decide that there was a primafacie error with respect to the order and baseduponthattest,theordershouldbestayed. Counsel for the Respondent, Mr. Wearing submitted that the Act makes no specific reference to staying anorderofareview officer. He submitted that to stay the order on the basis of prima facie error given that the Tribunal was not yet in receipt of evidence, would be to prejudge and thus fetter our jurisdiction to deal with the matters now before us.

2The Tribunal has carefully considered all of the submissions of Counsel and we dismiss the Applicant's motion. This application came to Review Services under section 22 of the Pay Equity Act, 1987. A ReviewOfficerinvestigatedundersection 23 and eventually issuedanOrderundersection24. The ONA applied to the Tribunal which took jurisdiction to hear this case in its decision dated April 25, 1989. The issues in dispute at the Review Services stage are precisely the issues now before the Tribunal. The only information from Review Services is the Order. In this proceeding witnesses will be called and the Tribunal will hear the evidence for the first time. In hearing the merits, the Tribunal will take a fresh look at the issues and provide the parties with the first opportunity to adduce evidence and to make submissions on the matters in dispute at a full hearing subject to the Statutory Powers Procedures Act, R.S.O. 1980 c.484.

3There is no specific language in the Pay Equity Act, 1987 with respect to a stay. The statute contemplates however, that any effort to enforce the review officer's April 6, 1989 order would come to the Tribunal. The Statutory Powers Procedures Act does not apply to a review officer. A party seeking to enforce this order would come before the Tribunal through Review Services by way of referral under subsections 24(5) and 25(1) (c) of the Pay Equity Act, 1987 which specify:

24(5)Where an employer or a bargaining agent fails to comply with an order under this section, a review officer may refer the matter to the Hearings Tribunal.

25(1)The Hearings Tribunal shall hold a hearing, (c)if a review officer refers a matter to the Hearings Tribunal under subsection 24(5)

The Tribunal is then required to hold a hearing to consider whether a party has failed to comply with an order of the review officer. If the Tribunal determines failure to comply, the decision of the Hearings Tribunalisenforceable byfilingwiththe Supreme CourtofOntario pursuant to section19 ofthe Statutory Powers Procedures Act.

5. Counsel for the Applicant agreed that in this case, the Tribunal did not have before it any complaint that the Applicant union had not complied with the Order. She submitted that ONA was seeking a stay to ensure that it would not be in contravention of the order should the Respondent seek to enforce. No such referral from the Review Officer that the Order has notbeencompliedwith, or request to enforce is before us. Clearly the Tribunal will decide only the issues before it. Any Application to enforce an Officer's Order would be scheduled for a hearing either separately or on a consolidated basis with this Application based upon the Tribunal's right to control its own practice and procedure and upon the need todisposeofissuesinafairand expeditious manner. It is natural that asmattersarisingfromanewstatute are litigated for the firsttimethatpartieswillseekdirection. However, such direction will not extend to the stay of an order when there is no attempt to enforce the order and when the issues that the Tribunal will consider are the very issues which were in dispute at Review Services. The motion to stay the Order is therefore dismissed.

MOTION ON INDEPENDENT RELIEF

1 Counsel for the Applicant made a preliminary motion requesting that the Respondent Regional Municipality's remedial request for "an order to the Applicant Union to bargain in good faith toward the achievement of a gender-neutral comparison system and pay equity plan with the employer; and such furtherand otherreliefas the Respondent Employer may advise and the Commission may see fit to grant" and paragraph 14 of the Response "The employer further states that the applicant union has failed to negotiateingoodfaithforagenderneutralcomparisonsystem"be struckfromthe Respondent'sResponse on the grounds that the Regional Municipality did not file a complaint with Review Services in this matter and accordingly is not now entitled to seek independent relief.

2 Counsel submitted that it is not proper at this stage for the employer to declare or state a complaint. She submitted that the Pay Equity Act, 1987 has a specific complaint mechanism, which includes filing a complaint, an investigationbyareviewofficerwithanattempttosettletheissuesindispute. She submitted that in this case, the allegationwasnotmadeat the Review Services stage, it has not been investigated by theOfficer,andthere has beennoopportunitytosettleorhaveearlyresolutionofthismatter. Ms. Cornish submitted that the Applicant has no knowledge of the basis of the statement and no particulars of the allegations. Counsel submitted that the Respondent could have filed its own complaint then or at any time since, and that the Respondent cannot abridge all the steps at Review Services and now seek independent relief.

3 Counsel for the Respondent submitted that the employer is not filing a counter complaint. He submitted that the Tribunal's Rules of Practice and Response form make reference to remedy; that the RegionalMunicipalitywasonlyfollowingthe directionofthe formand rule 2.03 (d) ofthe RulesofPractice which asks for remedy sought. Counsel also requestedduringhissubmissionthat the Tribunal amend the Responseto requestthatthe Tribunalconfirmthe review officer's order under section25(2)(d)ofthe Act. Mr. Wearing submitted that in asking the Applicant to bargain in good faith, the Respondent was asking theTribunalto directtheapplicanttobargainaspertheorder. He did not dispute however, that at the time of this remedial request, the order did not yet exist. Counsel submitted that paragraph 14 is brought to assert the Respondent's own defence and to strike it would be to constrain the employer's defence.

9. Having weighed the arguments of Counsel, on balance we find that paragraph 14 does on its face make a counter allegation and must therefore be struck. The wording of the paragraph states that "the

applicant union has failed to negotiate in good faith for a gender neutral comparison system ..." which is preciselythe wordingthatwould charge a contraventionofsection14of the Pay EquityAct,1987. There is no dispute by the parties that these counter allegations were not at the review officer stage. Although we aresympathetic tothe Respondent'ssubmissionthatthe paragraphwasmeant onlyasadefence,wecannot accept that a defence is to include charges that the Act has been contravened when such allegations were not part ofthecomplaintresolutionprocessatReviewServices. The Respondent is entitled to bring a full defence with respect to the allegations madebythe Applicant union and we fully expect to hear evidence and argument arising out of the detailed Response filed.

4With respect to Mr.Wearing'ssubmissiononthe independent relief sought, we understand that on its face the form solicits a request for remedy. The Respondent is commended for attempting to meet all the requirements of the rules and forms. However, the rules and forms do not make clear that such remedy mustalsobe requestedinthe context of the complaint mechanisms in the Act. If a Respondent has sought relief at the Review Services stage, then it is appropriatetoseek thatremedywhenthe Tribunal considers the merits of a case. Similarly,ifarequestforremedy arises directly out of a review officer's order, it will be appropriate to seek that remedy at the Tribunal. Accordingly, we strike paragraph 2 of the remedy section of the Response by the Regional Municipality.

5We do however find that it is appropriate for the Respondent to seek to confirm the Officer's Order and ask the Tribunal to direct the Applicant to bargain as per the Order. Accordingly, we amend the remedy section of the Response to include the Respondent's request to confirm the Order of the Review Officer dated April 6, 1989.

ISSUES BEFORE THE TRIBUNAL

12. Counsel sought clarification of what matters are now before the Tribunal arising out of its decision of April 25, 1989 to take jurisdiction to hear the case under subsections 25(l)(a) and 25(1)(b) of the Act. The Tribunalwillproceedto hear the evidence and argument on the allegations contained in the March 9, 1989 Application to the Tribunalthat the Respondent has contravened sections 4, 5, 6(1), 7, 12, 13 and 14 of the Pay Equity Act, 1987 and the Responses filed. The Tribunal also will consider the remedy sought bythe Applicant initsMarch9, 1989 Application, the amended remedy sought in its letterofApril 12, 1989 as well as the amended relief sought by the Respondent to confirm the Order of the Review Officer dated April 6, 1989. This hearing will resume on May 15, 1989.