0001-89 Ontario Nurses Association, Applicant v. Regional Municipality of Haldimand-Norfolk, Respondent
Before : Janis Sarra, Vice-Chair; Sharon Laing and Geri Sheedy, Members
Appearances: Mary Cornish for the Applicant; Paul Wearing for the Respondent
Cite As: Haldimand-Norfolk (No.4) (1990), 1 P.E.R. 49
Evidence - Experts
TheUnionsoughttointroduceexpertopiniononarangeof issues pertainingtowomen'swork. There was dispute between the parties as to both the qualifications of the witness and the relevance of her proposed evidence. The Tribunal qualified the witness as an expert but limited the scope of her testimony.
Preuves - Experts
Le syndicat a voulu produire l'opinion d'une personne experte sur un éventail de questions ayant trait au travail des femmes. Les parties ne s'entendaient pas sur les compétences professionnelles du témoin en question ni sur la pertinence du témoignage proposé. Le Tribunal a reconnu le témoin comme témoin expert et restreint l'envergure de son témoignage
DECISION OF THE TRIBUNAL, SEPTEMBER 5, 1989
1The Applicant Ontario Nurses Association seeks to introduce the expert opinion evidence of Dr. Pat Armstrong to testify on a range of issues pertaining to women's work and gender bias as proposed in the letters which are exhibits 41 and 42. There was considerable dispute between the parties as to both relevanceandqualifications ofthis witness;the process ofexamination, cross-examinationand submissions consumed two days of hearing on August 23 and 24, 1989. In deciding these issues the Tribunal intends to give direction to the parties. We anticipate that this decision will serve to expedite the process.
2The receipt of expert opinion evidence is not new to administrative tribunals. Even tribunals such as the Pay Equity Hearings Tribunal whose members have a specialized expertise in labour relations and compensation can benefit and draw helpful inferences from the informed opinions of experts in the field. The Pay Equity Act requires that a comparison systembe gender neutral. This case is a first look at the issueofgenderneutralityofaproposedpayequity plan. Although it isfortheTribunaltoultimatelydecide the legal standard of gender neutrality required by the Pay Equity Act, the Tribunal can be assisted by expert opinions. In approaching this evidence, the Tribunal must balance several factors: the need for a fair, accessible and expeditious hearing; the needtounderstand as fullyaspossible the technicalissuesinvolved; and the need to avoid the inherent dangers of too many experts or too much expert evidence which can have the effect of prolonging the proceedings or clouding the issues. The scope and admissibility ofsuch evidencemayvaryinany given case. The tests for receipt of expert evidence are two-fold. First, has the expertestablishedqualifications intherelevantfield?Second,isthe evidencesought to beadmittedrelevant to the issues before the Tribunal and will it be helpful to the Tribunal in its determination of those issues?
3In qualifying an expert, the Tribunal must satisfy itself that the witness possesses sufficient skill, knowledge or experience in the area as to be able to appreciably assist the Tribunal. That knowledge or skill canbeacquiredfromstudyandresearch;practicaltrainingandexperience; or from both. It is for the Tribunal to decide whether the witness is to be qualified as an expert in the proceedings. That expertise in the context of the Pay Equity Act need not be strictly related to those working with job evaluation systems; other typesofexpertevidencecouldaidourunderstandingofthe issues in dispute. The Tribunal must itself ask if the expertise is relevant and if it is of assistance to the Tribunal.
4The Tribunal finds thatDr.PatArmstrongisanexpertonthenatureofwomeninthelabourforceand in particular on women's work in the health care sector including nursing work. Dr. Armstrong has expertise in both the Canadian and Ontario context. We also find that Dr. Armstrong has expertise in critiquing methodologies which capture and analyse women's work. Thisisevidentbothinhersubstantial academic credentials in sociology as well as her research and studies, publication of books, articles in academic texts, refereed journals and other publications.
5The Applicant seeks to introduce a broad range of expert opinion evidence through this witness. Both parties made extensive submissions onrelevanceand reliedinlarge measureuponthe Tribunal'soralruling of June 26, 1989. To quote in part:
The issue before the Tribunal at this point is the allegation by the Applicant Unionthatthe Respondent Employer has failed to negotiate in good faith and endeavour to agree upon a gender neutral comparison systemand a payequityplanforits bargaining units contrary to the Act and particularly sections 4, 5, 6 (1), 7, 12, 13 and 14. The Applicant alleges that the Respondent has unilaterally adopted and is implementing a gender biased comparison system and pay equity plan contrary to the Act.
The only relevant issues before the panel are the issue of good faith bargaining and the issue of the gender neutrality of proposals put forward by the Respondent in this case. Evidence relating to the gender neutrality ofthe Mercer plan or any other plan is relevant only insofar as it relates to the gender neutral comparison system and the pay equity plan that these parties are required to negotiate under the Pay Equity Act.
We have heard that the Respondent intends to lead evidence with respect to the Mercer plan as it has been tabled and negotiated in this case; that evidence is relevant to the determinationoftheissuesbeforeus. Similarly, it is for the Applicant to lead evidence only on those aspects of Mercer or any other plan or comparison system that are relevant to the issues before us. In terms. oftheevidencethat has already been led, it will be for the Tribunal to decide what is relevant to the determination of this case.
Inlight ofthe issue beingwhetherthe employerinthis case hasnegotiatedingoodfaithand endeavouredto agree upon a gender neutralcomparisonsystemand a payequityplanfor these bargaining units, we find that William M. Mercer Ltd. has only a commercial and incidental interest in the proceedings before us. Accordingly, we do not grant intervenor or party status to William M. Mercer Ltd.
That ruling scoped the issues in this case and is helpful in determining the relevance of the evidence the Applicant seeks to introduce through Dr. Armstrong. The issue of gender neutrality of the proposals tabled by the Respondent employer is before the Tribunal. The Applicant has the right to call evidence directly relevant to that issue. In calling that evidence, the Applicant can put the issues in a contextual framework in terms of women's work in the health care sector and in the context of the Pay Equity Act. Such evidence is particularly important in the determination of a case where no previous standards of gender neutrality have been decided. Suchstandards must be decided based upon a thorough canvassing of the issues in this case. However, there is also a need to avoid an excessively lengthy hearing. It is in this context that the Tribunal intends to clarify what will and will not be of assistance to us in the determination of these issues.
1 The Tribunal will receive the evidence of Dr. Armstrong to evaluate the ability of the methodology proposedbythe Respondent Municipalityto properlycaptureand reflectthe job content oftheApplicant's nursing members in these bargaining units.
2 The Tribunal will also receive the evidence of Dr. Armstrong as a sociologist to comment on the possible gender effect of the methodology proposed by the Respondent in this case.
3 The Applicant also seeks to have Dr. Armstrong testify with regard to the following (exhibit #41):
- HerresearchReportpreparedforthePayEquityCommissionconcerningPay Equity in Predominately Female Establishments: Health Care Sector, September 26, 1988. In particular, she will testify concerning:
a) the nature of "women's work in the health care sector", specifically the fact that nursing skills are. general, complex, overlapping, invisible and unrecognized in large part. She will testify to the fact that classic job descriptions and job evaluation schemes focus on discrete tasks and specific skills that are more likely to befound inmale dominatedjobsand fail to capture these more general "womanly" skills and the wide ranging, overlapping tasks that characterize much of women's paid and unpaid work. (See Chapter 2 of the above-noted Study).
b) the profile of Health Care in Ontario and in particular that it is an "hierarchically organized, sex segregated and cast divided health care structure". (See Chapter 3).
c) her description of the field of registered nursing in Ontario contained at page 35 to 40 of the above-noted Study.
d) her profile of a Public Health Unit found at page 101 and in particular her findings that Public Health Nurse job descriptions do not capture all aspects of the skills, responsibilities, efforts and working conditions involved in providing care (see page 102 to 103).
e) her description of the Community Health Program and Health Centres in Ontario found at page 65 to 66.
f) her conclusions and Critique of current job evaluation schemes as found in Chapter 5 at page 135.
1 Her understanding, knowledge and research in the area of women's work and the devaluation of the skills involvedinwomen'swork(forreferencesee herCurriculumVitae pages 3-11 which sets out her publications and professional experience).
2 Her research with Hugh Armstrong into the nature of women's work, specifically nursing obtained in a study of a large Metropolitan Hospital in Montreal.
1 The Tribunal will allow Dr. Armstrong to give evidence on the nature of women'sworkinthe health care sector, specifically her view that nursing skills are general, complex, overlapping, invisible and unrecognized, insofar as it forms a basis of the critique of the methodology proposed by the Respondent in this case. With respect to the remainder of paragraphs 1 (a-f), 2 and 3 the Tribunal does not find it helpful or relevant to receive a comprehensive historical overview as proposed. We do however expect this expert or any expert in this proceeding to rely upon and draw from their studies, knowledge and practical experience in providing a basis of information and expertise upon which to comment upon the gender effects of the methodology proposed by the Respondent in this case.
2 The Applicant also seeks to have Dr. Armstrong review the Mercer comparison system in general and the bargaining history of the parties in this matter. The Tribunal will not allow Dr. Armstrong to commentgenerallyontheMercercomparisonsystem. As we stated in our June 26, 1989 ruling, the issues before us relate to the gender neutrality of the proposals tabledbytheRespondentinthiscase. The issue of the Mercer comparison system in general is not before us and accordingly the Applicant union will not be allowed to lead this evidence. Finally, with respect to the Applicant's request that Dr. Armstrong review the bargaining history of the parties, the legal standard of negotiating in good faith as required by the Pay Equity Act is an issue for the Tribunal to decide. We are not persuaded that Dr. Armstrong's evidence will be of assistance to us in determination of this issue. Accordingly, the Tribunal will not allow Dr. Armstrong to comment on the bargaining history of these parties in this matter.