0001-89 Ontario Nurses Association, Applicant v. Regional Municipality of Haldimand-Norfolk
Before : Janis Sarra, Vice-Chair; Sharon Laing and Geri Sheedy, Members
Appearances:MaryCornishforthe Applicant;PaulWearingfortheRespondent;MaryEbertsforWilliam
M. Mercer, Limited
Cite As: Haldimand-Norfolk (No.5) (1990), 1 P.E.R. 77
Practice and Procedure - Interveners
The Unionobjected to the job evaluationsystemproposed bythe Municipalityonthe basis that the system was not gender neutral. Mercer, the company which prepared and marketed the system, applied to intervene in the proceedings on the basis that its business could be adversely affected by the decision of the Tribunal. The Tribunal refused the request on the basis that Mercer was neither a party within the meaningofsubsection32(1)and did not have a recognizable interest in the litigationwhichdiffersfromthe Municipality. The particular issue in dispute is not the gender neutrality of Mercer's methodology in general, but thegenderneutralityoftheproposals put forward by the Municipality. To grant Mercer status would unnecessarily add to the length and cost of the proceedings.
Pratique et procédure - Intervention
Le syndicat requérant prétend que l'intimé, la municipalité, ne s'est pas enforcée de convenir d'un système non sexiste de comparaison. Mercer, a demandé de participer à l'instance à titre d'intervenant en faisant valoir que la décision du Tribunal pourrait avoir des conséquences néfastes sur ses affaires. Le Tribunal a rejeté la requête en intervention. Le paragraphe 32(1) précise les parties à une instance tenue devant le TribunaletleTribunaln'accorderaitpas1'autorisation à M. d'intervenir dans 1'affaire. Mercer n'a pas un intérêt reconnaissable différent de celui de l'intimé. La question qui fait d’objet du présent litige n'est pas lecaractère sexisteounon sexiste des méthodes, en général, de Mercer mais le caractèrenonsexistedes projets de l'intimé. Il n'y a paslieud'allongeroudecompliquer le processus quand Mercer n'est pas visé par le résultat de 1'audience.
DECISION OF THE TRIBUNAL, NOVEMBER 22, 1989
1This is an application by the Ontario Nurses' Association alleging that Respondent Employer, 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. During the course of the hearing on June 23, 1989, the firm of William M. Mercer Limited (herein "Mercer") made an application for intervenor status in the proceedings. Also at issue was a letter sent from Mercer to the Applicant Ontario Nurses Association. The Tribunal gave an oral ruling and subsequently in October 1989 the Tribunal was requested to give reasons. These reasons follow.
- The full text of the oral ruling on June 26, 1989 was:
1 The Tribunal makes the following unanimous ruling with respect to the request by William M. Mercer Limited to seek intervenor status in these proceedings:
1 TheissuebeforetheTribunalatthispoint is the allegation by the ApplicantUnionthat the Respondent Employer hasfailedto negotiateingoodfaithand endeavour to agree upona genderneutralcomparisonsystemand a payequityplanforitsbargaining 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.
1 The only relevant issuesbeforethepanelaretheissueofgoodfaithbargainingandthe issue of gender neutrality of proposals put forward by the Respondent in this case. Evidence relating to the gender neutrality of the Mercer Plan or any other plan is relevant only insofar as it relates tothe genderneutralcomparisonsystemand the pay equity plan that these parties are required to negotiate under the Pay Equity Act, 1987.
1 WehaveheardthattheRespondentintendstoleadevidencewithrespecttotheMercer Plan as it has been tabled and negotiated in this case; that evidence isrelevant to the determination of the issues before us. 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 of the evidence that has already been led, it will be for the Tribunal to decide what is relevant to the determination of this case.
1 In light of the issue being whether the Employer in this case has negotiated in good faith and endeavoured to agree upon a genderneutralcomparison system and a pay equityplanforthesebargainingunits,wefind thatWilliamM. Mercer Limitedhasonly a commercialand incidentalinterestintheproceedings beforeus.Accordingly, wedo not grant intervenor or party status to William M. Mercer Limited.
1 WithrespecttotherequestbytheApplicantfordirectionontheletterfromMsEberts to Ms Cornish, the matter between William M. Mercer Limited and the Ontario Nurses Association involves interests outside the scope of this hearing and accordingly, we make no comment.
2William M. Mercer Limited sought intervenor status on the basis that the company has an interest in these proceedings, namely that its business may be adversely affected by a decision of the Tribunal. Mercer stated that the plan marketed by the company does not function in a generic manner. It believes because the Applicant Union has referred to the company's job evaluation methodology as "off the shelf" or "a priori", that allegations with respect to gender bias, if upheld by the Tribunal, could have long term negative commercial effects. Mercer asked for standing as a party intervenor under section 5 of the Statutory Powers Procedures ActR.S.O. 1984c.484, withthe right to callwitnesses, to cross-examine the Applicant's witnesses on issues of gender bias in the Mercer Plan and to make submissions. Mercer did not seek to adduce evidence on the bargaining history between these parties. The Respondent Employer supported and the Applicant Union opposed the intervention application.
3Intervention can take two forms, as a "friend of the Tribunal" or as a party intervenor. A person or entitycanseek to participate in the proceedings as a friend of the Tribunal, to protect some generalpublic interest not represented by the parties, or to provide the Tribunal with some expertise in an area of fact, law or policy which could appreciably assist the Tribunal in its determination of the issues in dispute. The nature and extent of participation is at the discretionoftheTribunalinsuchacase. Mercer does not seek status on this basis and we need not consider this further.
4In determining whether or not William M. Mercer Limited should have party intervenor status in these proceedings, the Tribunal must address several questions. First,doestheTribunalhavethejurisdictionto add parties other than those specified under section 32 of the Pay Equity Act, 1987 and if so, what are the considerations? Second, what are the issues in dispute in this proceeding? Third, what is the nature of the interest or concern of the entity seeking to intervene? Finally, should the Tribunal grant intervenor status based upon these considerations?
5The objective of the Act is that affirmative action be taken to redress systemic gender wage discrimination; it is accomplished in a unionized setting through the negotiations between employers and bargainingagentsofapayequityplanand a genderneutralcomparisonsystem. The Act contemplates that these normally would be the parties to a proceeding before the Tribunal.
- Section 32(1) of the Pay Equity Act, 1987 states:
(1) Where a hearing is held before the Hearings Tribunal or where a review officer investigates for the purposes of effecting a settlement of an objection or complaint, the parties to the proceeding are,
(a) the employer;
(b) the objector or complainant; and
(c) the bargaining agent (if the pay equity plan relates to a bargaining unit) or the employees to whom the plan relates (if the plan does not relate to a bargaining unit).
- Subsection 32(1) specifies parties of right to a proceeding before the Tribunal. It mirrors the statutory framework of the Act. Proceedings under the Act arise directly out of complaints laid undersection22 which states: "Any employer, employee or group of employees, or the bargainingagent, if any, representing the employee or group of employees, may file a complaint with the Commission complainingthattherehasbeena contraventionofthis Act,the regulations or anorder ofthe Commission." Itisoutofthis provision that the complaint before us arises. Similarly, other provisions inthe Act provide that the same parties can object to plans and seek dispute resolution or adjudication. The provisions specifyhowandunder what conditions the parties may bring a matter to the Tribunal. The codification of parties under section 32 is part of the mechanism provided for in the statute, to deal with complaints and objections between the persons or entities who have rights and obligations under the Act. Similarly, the Act provides for the Tribunal to order remedies or take other action with respect to those persons or
entities who have rights and obligations under the Act. The wording of section 32 reflects this statutory framework.
6Counsel submitted that the Tribunal can expand the definition of parties under subsection 29 (2)(b) of the Act. Although the Tribunal has the authority under subsection 29(2)(b) to "make rules for the conduct and management ofitsaffairsand forthe practiceand procedure to beobserved inmattersbefore it"; such a provision does not, as Counsel would suggest, override a statutory limitation placed on the Tribunal; itdoesnotextend toamend or amplifythe statutoryprovisions ofpartiestothe proceedingwhich are specified in section 32 of the Pay Equity Act, 1987. The Tribunal must therefore consider by what other authority the Tribunal may be able to add party intervenors to a proceeding.
We now consider whetherMercercansucceedin its application for status on another basis, either section 5 of the Statutory Powers Procedures Act R.S.O. 1980 c. 484 or the common law. We must assess whether, as Counsel for the Respondent and Mercer have suggested, section 5 expands the definitionofpartiestoaproceedingoftheTribunal. Section 5 was enacted as a codification of the common law to ensure natural justice and fairness; it specifies who parties are as of right:
The parties toanyproceedingsshallbethepersonsspecifiedaspartiesbyorunderthe statute under which the proceedings arise or, if not so specified, persons entitled by law to be parties to the proceedings.
7If section 5 is interpreted to read that where a statute specifies parties, those are the only parties to theproceedings,theapplicationbyMercercannot succeed. Ifhowever,section5isinterpretedtoinclude those parties who are entitled by law even if they are not so specified, such interpretation may allow for party intervenors not specified in section 32 of the Pay Equity Act, 1987.
- In our view it is not necessary to decide the meaning of section 5, because even if we adopted the larger interpretation of its meaning, we would still not grant Mercer status in the proceedings before us. Assuming without finding that section 5 allows the Tribunal to add party intervenors because a person or entity has some recognizable interestinthe proceedingbeforethe Tribunal, Mercer's applicationfor status on the basis of a commercial as opposed to legal interest must be considered based upon the criteria of intervention. Such criteria arise out of the common law and assist in determining whether an intervention should be allowed. They would include:
(1) What is the nature and scope of the proposed intervenor's concern in these proceedings?
(2) Are there other mechanisms for dealing with the proposed intervenor's concerns suchasthe filingofitsownapplicationfor hearing or appearing as witness forone of the parties?
(3) What prejudice will there be to the parties if the person or entity seeking to intervene is permitted to participate in the proceedings as a party? Will the
interventionwidenthe issues in dispute? Will the interventiondelayanexpeditious determinationofthe dispute?Willthe interventionunreasonablyadd to the cost of the proceedings for the parties?
1 When the Tribunal considers in the context of the statutory framework of the Act whether a party intervenor should be granted status, it must consider the nature or type of cases which come before the Tribunal, as well as the particular issues before the Tribunal in any given case. The cases are inthe nature of a lis inter partes whereproceedings willarisewhenthereare disputesbetweenthe parties who have the rights and obligations under the Act to negotiate or to establish and maintain pay equity. Proceedings before the Tribunal will also deal with alleged breaches of the Act where a party with rights under the Act requests that the Tribunal find a breach and order remedialactionfor or against the parties specified under the law as having rights or obligations in the process to establish and maintain pay equity.
2 The sections which areallegedtohavebeencontravenedinthis case are sections 4, 5, 6(1), 7, 12, 13, and 14. The Sections are helpful in assessing the nature of the case before us:
4(1) The purpose of this Act is to redresssystemic genderdiscriminationincompensation 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) Forthe purposes ofthis Act, the criterion to be applied in determiningvalue-ofwork 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.
6(1) For the purposes of this Act, pay equity is achieved when the job rate for the female job classthatisthe subjectofthe comparisonisatleastequal to the job rateforamale job classinthe same establishment wherethe work performedinthetwo job classesisofequal or comparable value.
7(1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.
(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).
- Section 12 provides that every employer to whom the Part applies, before the mandatory posting date, shall use a gender neutral comparison system to compare female and male job classes in the establishment to determine whether pay equity exists. Section 13 requires the preparation of
documentscalledpayequityplansandsetsoutdetailedrequirementsfortheplans. Section 14requires the employer and the bargaining agents in a unionized work place to negotiate ingoodfaithand agreeupon a genderneutralcomparisonsystemand a pay equity planforthe bargainingunit.Thesesections requirepay equity to be established and maintained and the vehicle to achieve this in an unionized environment is through negotiations between the employer and bargaining agent. It is evident that the nature of the cases which will come to the Tribunal under these sections of the Act are disputes between parties obligated to develop pay equity plans.
2 In the case before us, the issues before the Tribunal are the allegations that the Respondent Employer has failed to meet its obligation to negotiate in good faith with the Ontario Nurses' Association and to endeavour to agreeupona gender neutral comparison system and a pay equity plan, contrary to the Act. The relevant issuesare thereforethe issue of good faith bargaining and the issue ofthe genderneutralityof the proposals put forward by the Respondent in this case. The issue is not the gender neutrality of the Mercer methodology in general, rather the gender neutrality of the proposals put forward by the Respondent Employer. Although we accept Counsel's submission that it is not for the Respondent to defend the general job evaluation methodology of a third party, it is for the Employer to defend the proposals it has tabled in order to assist the Tribunal in its determination of whether or not the Employer has complied with the dutytonegotiatein good faith and the standards of gender neutrality contemplated bythe Act. To the extent that the Mercer job evaluation methodology forms part of the employer's position at the bargaining table, it is for the employer to lead evidence with respect to its content and whether it meets these standards.
3 The Pay Equity Act, 1987 does not include any reference to job evaluation systems. The choice byanypartywithrightsand obligations under the Act toseek the assistanceofaconsultingfirmorto select a job evaluation methodology asa toolto formthe basis ofitsbargainingproposals,is a decision made by the party depending upon what it sees as the most useful or appropriate approach to its statutory obligations. The statute specifies that any methodology to be used must be negotiated where there is a bargaining agent. These or other methodologies may form part of the gender neutral comparison system specified by the Act using the factors of skill, effort, responsibility and working conditions, subject to the process of negotiations contemplated by section 14. The use of consultants or their private plans is incidental to the obligations employers and bargaining agents have under the Act. There are no statutory obligations placed upon companies which develop and market job evaluation methodologies; therefore it is difficult to conclude that the Tribunal would have any jurisdiction to hear and adjudicate on a methodology outside a specific workplace context. The issue in the case now before us with respect to any aspect of the Mercer methodology is a very narrow one, and such evidence must be heard in the context of the negotiations that have taken place between these parties.
- In assessing what the nature and the scope of Mercer's concern is in these proceedings, it is evident thatMercerisseekingpartyintervenorstatustoprotectitscommercialinterests. It seeks to lead evidence, cross examine and makesubmissions onthe question of the gender neutrality ofthe Mercer job evaluation methodology. Given the issues before the Tribunal in this case, there is not a recognizable interest which differs from the Respondent. Wewereinformedthatcounselfor the Respondent would be calling expert
witnesses from the Mercer firminsupportof the Employer's case and leading evidence on aspects of the Mercer methodology which the Respondent has tabled in pay equity negotiations in this establishment.
4 The Tribunal must also assess what effect upon or prejudice there is to the parties if Mercer is permitted to participate. We are not persuaded that there is a danger of widening the issues in this particular case because the issues have been clearly and narrowly defined. However, to grant Mercer party intervenor status would unnecessarily add to the length and cost of the proceedings. The Tribunal must balance this against the need to be fair, accessible and efficient in our adjudication of disputes. We can find no reason to lengthen or complicate the process unnecessarily when the Mercer company is not subject to any result of the hearing. In essence, the Tribunal is being asked to give status to a potential witness who believes a criticism of its product will cause some loss in business; however, it is not the "a priori" methodology in general which is at issue, but rather those elements of the methodology which the Employer incorporated as bargaining proposals and which it tabled in pay equity negotiations. There is prejudicetotheApplicant ifthe Employerisallowedtobuttressthe defenceofitsproposals bystatus being granted to Mercer as an additional party intervenor.
5 Even if section 5 of the Statutory Powers Procedures Act R.S.O. 1984 c. 484 does entitle additional entities to seek status as a party intervenor, the cases cited by all three Counsel to the Tribunal are not helpful in supporting this proposition. In Re: Collins et al and Pension Commission of Ontario et al., Re: Bachelor et al and Pension Commission of Ontario et al. (1986), 1986 CanLII 3913 (ON HCJDC), 56 O.R. (2d) 274 the Court held that the Ontario Pension Commission had breached its duty of fairness and statutory responsibilities by granting consent to an application by the employer to remove surplus pension funds without giving noticetothepensionplanmembers. The Court held that there was a direct interest for plan holders under the statute and that those interests would be affected by the outcome of the decision. The case before this Tribunal differsinthatnosuchdirectlegalinterestexistsfortheMercerCompany. In Re: Clark et al and Attorney-General of Canada (1978), 1978 CanLII 1691 (ON CA), 17 O.R. (2d) 592theCourtdealtwiththescope and appropriateness of amici curiae; the panel faced no such request in our case.
6 In Real Cardinal and Eric Oswald and Director of Kent Institution 1985 CanLII 23 (SCC), [1985] 2 R.C.S. 643 the Courtheld thatthe Directorof a penal institution had breached his duty of proceduralfairnessbyfailingto afford prisoners the opportunity to state their case before making a decision to maintain segregated containment after a hostage taking incident. The Court said that the duty of procedural fairness extends to those whose rights and privileges are being directly and legally affected. As an administrative tribunal our duty of procedural fairness differs from that of a Director of a penalinstitution. However, the case is helpful in our assessment of whether in the case before us, there are rights that are directly and legally affectedbynotallowingMercer toparticipate;findingthattherearenone,we find there is no breachofthe duty of procedural fairness in not granting the intervention application.
- In Re: Starr and the Township of Puslinch (1976), 1976 CanLII 870 (ON HCJ), 12 O.R. (2d) 40 (Divisional Court) the Court held that the purchasers of a designated gravel pit had an interest in a rezoning application because its commercialinterestwasconsiderable to the extent thatitsveryenterprisewasindangerofbeingprohibited from operation and because their participation was necessary to enable the court to "effectually and completelyadjudicateuponthequestionsinvolvedintheaction". The CourtfocuseduponRule136ofthe
old Rules of Civil Procedures. In the case before us, we must look to the statutory framework bywhich we are governed. However, even if we were to accept the Court's reasoning, the Pay Equity Act, 1987 imposesno rightsor obligations onconsultingfirms and there are no issues in disputewhichcould have the outcomeof prohibiting Mercer's business operations. It is also not necessary for theTribunaltohavethe participation of Mercer in order to "effectually and completely" decide the issues in dispute.
7 In Re: Federation of Women Teachers' Association of Ontario and Ontario Human Rights Commission et al., (1988), 69 O.R. (2d), 492 (Divisional Court) the Federation of Women Teachers (FWTAO) was one of five affiliates to a statutory body, the Ontario Teachers Federation (OTF). Two of its women members laid complaintswiththe Human Rights Commission alleging that the bylaws of the OTF which require themtobemembersoftheWomen'sFederationwerediscriminatory. The complaints werebased uponthe guaranteesinthe Human Rights Code S.O. 1981, c.53withrespecttomembership inanyoccupationalassociationwithoutdiscriminationbecauseofsex. One of the grounds upon which the FWTAO applied for judicial review was that it was denied party status by the Commission in the initial processing of the complaint. The Court, in finding that the Commission had complied with its duty to act fairly, found the FWTAO had been granted intervenor status with all the rights of a party and that it was afforded a full opportunity to make its case totheBoardofInquiry. It found that regardless of whether or not the Federation was granted status under subsection 38(2) of the Code or under section 5 of the Statutory Powers Procedures Act R.S.O. 1984 c.484, that its right of appeal under section 41 of the Code was preserved. It is not clear that the Court was expanding on parties specified under subsection 38(2) of the Code, since the Court in that case did not assess the meaning of section 5 of the Statutory Powers Procedures Act R.S.O. 1984 c.484. Thus it is not of particular assistance to us.
8In Re: Schofield and the Minister of Consumer and Commercial Relations (1980), 1980 CanLII 1726 (ON CA), 28 O.R. (2d) 764 (O.C.A.), the case involved no fault benefits paid by the Minister of Consumer and Commercial Relations;otherslitigatingthe same issues sought status on the grounds thatthe outcome ofthe firstappeal woulddirectlyaffectonecase pending and another which had settled. The Ontario CourtofAppealheld thatwherethe outcome of litigation would directly affect a subsequent case, the doctrine ofprecedent did not extend to deciding the applicability of one case to the facts of another case and thus the intervention application was denied. This case is helpful in reinforcing that the Tribunal is dealing with the proposals tabledbythe Respondent Employerinthis case and thatevenifMercerwerefacedwiththe issue ofgender neutrality in another case before this Tribunal, any decision here with respect to elements of the Mercer methodology tabled by the Respondent would in no way decide the second case which would rest upon its own facts.
- In The TorontoBuildingand Construction Trades Council v. Napev Construction Limited and Vepan Leaseholds Limited (1976) OLRB Rep. March 109, the Ontario Labour Board found that a commercial and incidental interest was not sufficient to entitle an intervenor status to participate in a subsection1(4)relatedemployerdispute. Citing both case law and the common law, the Board foundat paragraph19 thatthe partyseekingtointervene did nothave an interest within the meaning ofthe Ontario Labour Relations Act R.S.O. 1980 c.228; that anyinjurytotheparty"astheresultofthedecisionofthe Board could onlyarise commercially and incidentally but notlegallyand directly"and the Board dismissed
the intervention applications. Similarly, we find that Mercer has only a commercial and incidentalinterest and not a legal and direct interest in the issues in the case before us.
9In balancing the criteria for intervention, the Tribunal finds that the nature and scope of the proposed intervenor's concern in these proceedings is not one which involves direct and legal interests. The issues beforethis Tribunal are whether the Respondent Employer hasnegotiatedingoodfaithwiththe Applicant Unionand whether the proposals put forward by the Respondent meet the standards ofgenderneutrality contemplated by the Act. Mercer's concerns are of a commercial nature and are incidental to the issues before us. The Tribunal acknowledges that the Respondent intends to lead evidence on the Mercer methodology in the context of the Employer's obligations under the Act. In summarizing our application of the other criteria, the Tribunal finds that there would be a prejudice to the parties in allowing Mercer's participation; the proceedings would be unnecessarily lengthened and more costly and would delay an expeditious determination of the dispute. We do not find that the issues in dispute would necessarily be widened. Having considered the criteria, on balance, the Tribunalfindsthatevenif it does have authority to add party intervenors, it would not allow the intervention application in this case.
10Accordingly, the Tribunal does not grant party intervenor, status to William M. Mercer Limited in these proceedings.