Ontario Nurses' Association v. The County of Middlesex, 1989 CanLII 1458

0002-89 Ontario Nurses' Association, Applicant v. The County of Middlesex ; The Corporation of the CityofLondon, Respondents;TheBoard ofHealthMiddlesex-LondonHealthUnit;TheCrowninRight of Ontario, Other Parties

Before : Raphael Palumbo,Vice-Chair; Susan Genge and Donald Dudar, Members

Appearances:MaryCornish, LauraTrachuk,AnnMarieDelorey,Noelle Andrews,Marsha Palmer,Lori Newton, and Janiss Davidson for the Ontario Nurses' Association; John W.T. Judson and Robert Rowe for the Board of HealthMiddlesex-LondonHealthUnit;RodneyDale and JanetV. Collins forthe County of Middlesex; James P. Barber, Anthony J. Grassi, Edward Normile, Heather Hope, H. Ross Rowe for the Corporation of the City of London; Dennis Brown, Q.C., John Zarudny, Mary Quick, Stephen Patterson and Mary Lou Reeves for the Crown in Right of Ontario.

Cite As: Middlesex and London (1990), 1 P.E.R. 89

Employer

The Union applied to have the Corporationofthe Cityof London and the County of Middlesex declared theemployerofthenursesattheBoardof Health Middlesex-London Health Unit forthepurposesofpay equity. Applying the Haldimand-Norfolk (No.3) test, the Tribunal finds that the Health Unit has overall financial responsibility notwithstanding the Province contributes 75% of the budget. In the public sector the phrase "responsibility for the budget" encompasses more than merely who can give ultimate approval or who provides funding, but also includes factors such as who is responsible for establishing the budget and is ultimately accountable for its administration. Second, the Health Unit also has responsibility for compensation practices. Third, the core activity of the service is the provision of public health programs and servicesin a manner which is relatively independent and which has been conferredonlocalboards of healthbystatute.Finally, when the evidence points inescapably to one party as the employer, it would be inappropriate to make a finding inconsistent with the evidence on the basis that to do otherwise would deprive a party of male comparators. The Tribunal found that the Health Unit was the employer for purposes of pay equity.

Employeur

Le syndicat a. demandé que la municipalité de London et le comté de Middlesex soient reconnus l'employeur des infirmières du Conseil de santé de la circonscription sanitaire de Middlesex-London aux fins de l'équité salariale. Suite à 1'application du test Haldimand-Norfolk (No.3), le Tribunal estime que 1'ensemble de la responsabilité financière incombe à la circonscriptionsanitaire. Même si la contribution du gouvernement provincial correspond à 75 % du budget, dans le cas du secteur public l'expression “responsabilité budgétaire” ne se limite pas seulement à la question de déterminer qui peut dormer l'approbationdefinitiveouquifournitlescrédits. Le concept de responsabilité budgétairecomprendaussi qui est charge d'élaborer le budget et qui est finalement responsable de sa gestion. Deuxièmement, la circonscriptionsanitaireestégalementresponsabledespratiquesenmatièrederétribution. Troisièmement, le gros de l'activité de l'organisme en question est de fournir des programmes et des services dans le domaine de l'hygiène publique d'une façon relativement indépendante. Cette responsabilité est conférée aux conseils locaux de santé en vertu d'une loi. Finalement, quand toutes les preuves démontrent irréfutablement qu'une partie est un employeur, il serait inapproprié de prendre une décision incompatible avec ces preuves en faisant valoir qu'une décision contraire priverait une partie de catégories d'emplois masculins permettant de faire des comparaisons. Le Tribunal a statué que la circonscription sanitaire est l'employeur aux fins de l'équité salariale.

DECISION OF THE TRIBUNAL, NOVEMBER 30, 1989

1This is an Application by the Ontario Nurses' Association ("ONA") that the Respondents, the Corporationofthe Cityof London (the "City") and the County of Middlesex (the "County") have refused to acknowledge and agree that they are the employer of the nurses at the Board of Health Middlesex-LondonHealthUnit (the "HealthUnit") forthe purposesofthe PayEquityAct,1987 S.O. 1987 c. 34 (the "Act")andthattheestablishmentthereforeincludestheCountyandCityemployees. It is alleged therefore, that the County and City have contravened the Act, and particularly sections 4, 5, 6, 7, 12, 13 and 14.

2Prior to the commencement of the hearing, the Respondents and the Health Unit requested that the Registrar serve the Crown in Right of Ontario (the "Province") with notice of the Application. At the commencement of the hearing, the Province was added as a participant to the proceedings for the purpose of determining who is the employer of the nurses at the Board of Health Middlesex-London Health Unit.

3On August 9, 1989 Noelle Andrews, Reg. N., the Assistant Director, Government Relations for ONA, served onMr. Robert Rowe, Business Administrator and Secretary Treasurer of the Health Unit, a letter captioned "Notice of Desire to Bargain Between Ontario Nurses' Association and Middlesex-LondonHealthUnit". The letter stated that ONA was "serving notice of its desire to bargain in accordance with the Pay Equity Act". The parties met but discussions were terminated quickly as there was a disagreementastowhoistheemployerofthenursesintheHealthUnit. Ultimately, this matter was brought before the Tribunal.

THE ISSUE

4. The issue before the Tribunalis, who is the employer of the nurses employed at the Board of Health Middlesex-London Health Unit.

THE FACTS

1 The Ontario Nurses' Association is the collective bargaining agent for the bargaining unit composed solely of female job classes of public health nurses and registered nurses working at the Board of Health Middlesex-London Health Unit. The Respondents are the local municipal governments of the County of Middlesex and the Corporation of the City of London, two separate entities.

2 Historically, public health services in the County of Middlesex were delivered by the Middlesex County Health Unit. In the City of London, health services were delivered by the City of London Department of Health.

3 On November 24, 1970, the City of London and the County of Middlesex entered into an agreement regarding the formation of the Board of Health Middlesex-London Health Unit. The City and County

agreed that the Health Unit was to be under the management of a Board of Health which was to be composed of:

1 two members appointed by the Lieutenant-Governor in Council;

2 three resident ratepayers of the County of Middlesex, appointed by its Council;

3 three resident ratepayers of the City of London, appointed by its Council.

1 The County and City each appoint their Board of Healthrepresentativesannuallyandhavechosenin each case to appoint members of their respective Councils, although that is not required.

2 The County and the City are to share in the expenses of the Health Unit. Article 4(b) of the Agreement-provided that “each party's share of the said expenses shall be the percentage of the total expenditures of the District HealthUnit thatthe populationofthat party bears to the combined population of the said parties.”

3 Following the formal agreement between the City and County, an Order-in-Council establishing the Health Unit was enacted by the Province on January 28, 1971.

4Regulation 235/84 made pursuant to theHealth Protection and Promotion Act, 1983, S.O.1983,

c.10 provides that the Board of Health is to have six municipal members, three members to be appointed by the City Council and three members to be appointed by the County Council.

1 The Health Protection and Promotion Act, 1983 outlines the status of a board of health. Pursuant to section 51 every board of health is a corporation without share capital. A board of health may acquire and hold realpropertybut to doso itmustobtainthe consent of the majority ofthe municipalitieswithinthe health unit it serves. It must also obtain the consent of the Minister of Health.

2 The statutory basis for the programs provided by local boards of health is found in Part II of the Health Protection and Promotion Act, 1983.

14. Subsection 4(a) provides that every board of health:

4(a) shallsuperintend, provide orensurethe provisionofthe healthprograms and services requiredbythis Act and the regulations to the persons who resideinthe healthunitserved by the board.

3 Section 5 provides that every board of health must provide or ensure the provision of health programs and servicesrespectingcommunitysanitation, the controlof communicable diseases, preventive dentistry, family health, home care (which includes services for the acutely ill and chronically ill), nutrition, and public health education.

16. Section 7 provides that the Minister of Health “may publish guidelines for the provision of mandatory health programs and services and every board of health shall comply with the published guidelines.” In April, 1989 the Ministry of Health published new guidelines under the title "Mandatory Health Programs

and Services Guidelines -April, 1989". These revised programs are to be implemented over the next four years.

4 Section 9 provides that a board of health may provide other health programs or services, if the board of health deems it necessary or desirable and the councils ofthe municipalitiesinthe area ofthe health unit approve of the provision of the program.

5The Public Health Services Program and the Home Care Program are the two basic components of theservicesprovidedbytheHealthUnit. Funding for the Home Care Program is derived entirely from the Ministry of Health and the Ministry of Community and Social Services. Funding for the Public Health Services portion of the Health Unit budget is shared by the Province, County and City.

6In 1988, the Province paid approximately 90% of the entire Health Unit budget of $20 million. The Citypaid approximately 9% of that budget while the Countywasresponsible forapproximately1% ofthe budget.

7There are portions of the budgettowhichonlytheCityandProvincecontribute,andportionsofthe budget to which neither the City nor the County contribute. In the latter case, the Ministry of Health or other provincial ministries contribute to that budget.

21. Section 71 of the Health Protection and Promotion Act, 1983 provides that:

22. The expenses incurred by or on behalf of a board of health in the performance of the functions and duties of the board of health and the medical officer of health of the board of health under this and any other Act shall be borne and paid for by the municipalities in the health unit served by the board of health in such proportion as is agreed upon or, in default of agreement, in such proportion as is described by the regulations.

8Section 1 of Regulation 382/84 made pursuant to theHealth Protection and Promotion Act, 1983 provides that the Ministry of Health may pay a grant to a board of health under section 75 and that the grant maynotbe greaterthan 75% of the expenses of the board of health that have beenapproved bythe Minister.

9While section 75 indicates that the Ministry may pay grants, nevertheless the evidence was that in fact it has always paid 75% of the Health Unit's expenses that have been approved by the Minister.

BUDGET PROCESS

1 The Health Unit budget includes expenditures for the Public Health Program which are funded by the Province, City and County, and the Home Care Program which is fully funded by the Province.

2 Each year the Ministry of Health issues a guideline to the boards of health regarding the amount that will be approved by the Ministry as a base budget. The amount is normally the previous year's approved or adjusted budget plus a certain percentage, which in the last two years has been 4%.

3 The Health Unit budget is prepared by the Health Unit itself. Of the total budget, 85% is composed of salaries and benefits. In some years, because of staff additions approved by the Ministry of Health in the previous year, or because of negotiated settlements with bargaining agents at the HealthUnit,the cost of personnel has exceeded Ministry guidelines.

4 Once the budget draft is completed, it is reviewed by the Board of Health members on a line-by-line basis. At that time the Board can make changes to the proposed budget either through additions, deletions, or re-allocations. Following the review the budget is adopted and approved by members of the Board of Health. The budget is then forwarded to the Ministry of Health.

5 The Ministry of Health has the right, which it has exercised, to amend the budget submission on a line-by-line basis. This reflects the Ministry's control over the number of people the Health Unit employs and the costs it identifies to support those persons. When new programs are introduced or existing programsareexpanded,theyrequiretheadditionofeitherprofessionalorsupportstaff. The new programs cannot be implemented until such time as the Ministry has approved the addition of that staff.

6 The Health Unit's overall budget is reviewed only by the Ministry of Health. The City and County do not receive copies of the budget but rather are forwarded a description of services and a request for the funds to be allocated to the various programs providedbythe HealthUnit.While the City and County could request copies of the budget, they have never done so.

7 Neither the City nor the County have the right to amend the Health Unit budget on a line-by-line basis. In fact, the municipalities only review the allocation requests and not the entire budget. The evidence also disclosed that the Health Unit budget is not consolidated in either the City or County budget.

8 The evidenceofMr.Rowewasthathedoesnot consult with the City Treasurer prior to submitting theHealthUnit'sbudgettotheMinistryofHealth. Nor does he consult with the City Treasurer in preparing the budget itself, except to the extent that the Health Unit provides information regarding the City's apportionment.

CITY AND COUNTY ALLOCATION REQUESTS

1 In 1986, the City of London developed a budget submission format, entitled "Program Plan and Budget". It is employed by the Health Unit to provide information on programs it provides, as well as information to support the Health Unit allocation request.

33. The evidence disclosed that there is a formal process whereby the City reviews the Health Unit's allocationrequest. When that request is received, various City personnel review it to ensure that it is in the proper format. Mr. Rowe and Dr. Douglas Pudden, the Medical Officer of Health, appear before City Council's Community and Protective Services Committee to formally present their request and to answer

any questionsCommitteemembersmayhave. The Committee's recommendations are then forwarded to the Board of Control, which then makes its recommendations to City Council.

2 The City has the right to amend the allocation request by either raising it, which has never happened, or by lowering it, which has occurred only once. In 1986, City Council reduced the allocations to all boards and commissions that year to make fundsavailableforroadresurfacingintheCity. The allocation to the Health Unit was reduced by $4,500.00.

3 Mr. Rowe testified that the reduction of the City's allocation by $4,500.00 reduced the overall Health Unit budgetbyapproximatelyfivetimesthatamount because ofthe interplaybetweenthe municipal andprovincialfundingprocesses. The Board of Health decided to meet the budget reduction by reducing theamountithadrequestedforthepurchaseofequipment. He testified that the Board of Health made that decision independently of the City, County or Province.

4 Mr. Rowe testified that on one other occasion there wasanattemptto reduce the City's allocation to the Health Unit. In 1986, the Community and Protective Services Committee recommended to the Board of Control of the City of London that the 1986 appropriation request of the Health Unit be decreasedby$10,000fromtherequestedamountof$1,613,551totheamountof$1,603,551. Following submissions from the Health Unit, the Board of Control refused the request to decrease the allocation.

5 With regard to the budget allocation from the County, Dr. Pudden and Mr. Rowe appear before the Finance Committee of County Council. The amount of the County's allocation is presented to the CommitteewhichthenmakesarecommendationtoCouncilregardingtheamountrequested. The evidence was that the Committee has always recommended the amount requested and Council has always adopted that recommendation. While the County can amend the allocation request,infactithasnever altered it in any way.

6 The evidence disclosed that there were occasions when members of the Board of Health were themselves involved in the County funding process as County Councillors. During the 1986 Finance Committeemeetingwhichdealt withthe HealthUnit'sfundingrequest,the councillorwho movedto accept the Health Unit submissions at the Finance Committee was also a member of the Board of Health.

COLLECTIVE BARGAINING

1 At the present time, there is a collective agreement between the Board of Health Middlesex-London District Health Unit and ONA which expires on December 31, 1990. According to the terms of that agreement, the Board of Health is described as the employer. Article 6 of the agreement deals with salaries and professional classifications. Appendix "A" to the Agreement specifies the salaries for public health nurses, home care case managers, and registered nurses.

2 The collective bargaining at the Health Unit is conducted by a bargaining committee with Mr. John Judson as chief negotiator. Dr. Pudden and Mr. Rowe act as advisors. Neither the City nor the County have ever bargained collectively with any of the Health Unit's employees. The collective agreements are ratified by the Board of Health members on recommendation from the bargaining committee.

3 The evidence was that the major factor relevant to the the setting of wages was the position taken by ONA and the Board during collective bargaining. The union presents its position and the Board tries to make "the best deal possible". In so doing, the Board reviews its budget and the funds available to it; however it is still the content of the collective agreement which governs salary rates.

4 Mr. Rowe testified that since 1972 the bargaining process has resulted in some collective agreements that were different from what was anticipated in the budget process. He testified that in the most recent collective agreement reachedwithONAthe costofthatagreement is close to 6%whereasthe HealthUnit is operating with a Ministry guideline of 4%. He indicated that the Health Unit would find a way to deal with that problem. Mr. Rowe testified that in almost all cases collective agreements have been reached after the budget for the Health Unit has been set.

5 JanissDavidson,employedbyONAasaCoordinatorofEmploymentRelations,suggested that the 25% funding made by the municipalities would predetermine the 75% funding that the Province would provide. Her evidence was that if the municipalities could be persuaded to pay more than the 25% they paid the year previously, then the amount the Province would pay as its 75% share would increase proportionately. She indicated that the 25% funding from the municipalities is pivotal in the setting of compensationrates.Any increase infundingbythe municipalitiesand consequent increasebythe Province would set the boundaries in which ONA and the Health Unit could negotiate a salary increase.

6 Mr. Rowe disagreed with Ms. Davidson on this point. His evidence was that even if the City and County decided to allocate more funds to those programs whichtheyand the Province fund together, the Province would not be obligated to increase its funding proportionately. He also testified that the Health Unit did not have the right, given the Agreement entered intobythe Cityand County, to request that they pay more than their share of a program that is apportioned between them and the Province.

CONDUCT OF BOARD OF HEALTH MEMBERS

1 Mr. Rowe commented on the manner in which the City, County and Provincial appointees have conducted themselves while sitting as members of the Board of Health. He testified that the appointees behaveasBoardofHealthmembers. He could remember no instance where there hasbeenblockvoting by municipality. With respect to collective bargaining, his evidence was that he has never observed any conduct on the part of a Board member whichreflectedthe interests of the municipality from which he or shecame, as opposed to the interests of the Board. In Mr. Rowe's opinion, on onlyoneoccasiondidhe observe a situation in which a member of the Board was acting or voting not in the interests of the Board but in the interests of the municipality which appointed him. In that instance, a Board member appointed by the City suggested that the Health Unit's new offices should be located on a site that was tax-revenue producingtothe CityratherthanattheCountyBuildingwhich, as a municipalsite,isnotsubjectto property taxation. However, the Board did not follow that suggestion.

46. There was some evidence that City Council did attempt to direct Board members regarding the affairs of the Health Unit. At its session held on April 21, 1987 City Council resolved as follows:

Thatthe CityCouncilrepresentativesonthe Middlesex-London Health Unit be requested to ensure that the City of London does not assume any costs in connection with the Integrated Homemaker Program.

2 Mr. Don Hudson, Treasurer and Deputy Clerk of the County of Middlesex, testified that the County hasnotgiveninstructions to their appointeesonthe Board as tohowtheyought to voteonparticularHealth Unit issues.

PAYROLL, PERSONNEL, PAYMENT OF HEALTH UNIT EXPENSES, ACQUISITION OF CHATTELS, REPORTING BY THE HEALTH UNIT

1 The Health Unit uses a bank payroll system. The payroll cheques come from the bank but have the Health Unit's name on them. The Health Unit remits all source deductions, including income tax, unemployment insurance and pension and benefit deductions, and has its own account with the Ontario Municipal Employees Retirement System (" OMERS"). Mr. Rowe testified that there is no involvement bytheCityorCountyintheadministrationoftheHealthUnitpayroll. He also indicated that the Health Unit is identified with OMERS as an employer and has its own group identification number. The Health Unit deals with a different bank than do the City and County.

2 Mr. Rowe indicated that he is responsible for payroll, the administration of benefit plans, the support staff and forthemaintenanceofpersonnelrecordsofall employees of the Health Unit. Mr. Readings, the City Treasurer, Mr. Hudson and Mr. H. Ross Rowe, the Director of Personnel for the City of London, testified that neither the County nor the City perform any personnel functions for the Health Unit. The evidence disclosed that the City has no access to the Health Unit's personnel records.

3 The hiring, firing and discipline of the nursing staff are the responsibility of the Directors of the Public Health and Home Care Programs at the Health Unit. The Directors also direct the day-to-day work of the nurses in the two Programs. Both Directors are employees of the Health Unit.

4 Funding for the Health Unit is transferred from the County and City on a monthly basis, while the Province transfers funds twice a month.

5 Mr. Robert Rowe, as delegated by the Medical Officer of Health, is responsible for the expenses of the Health Unit. The Health Unit's accounting department issues cheques at least every other day for expenses and the payroll is bi-weekly. At no time does Mr. Rowe seek the approval of the City Treasurer to pay expenses. Neither the City nor the County makes any direct payments for the Health Unit's expenses.

6 The acquisition by the Health Unit of motor vehicles, office equipment and other chattels does not requiretheapprovalof the City or County. These items are part of the budget approvedbytheBoardof Health members and Ministry of Health. The cost of those items would be included in the appropriation requesttothe City and County. How the Health Unit's money is spent is a decisionmadebyDr.Pudden and Mr. Rowe, under the guidance of the Board of Health.

7 The Health Unit is audited every year by Touche Ross & Company for the purposes of preparing a financial statement which is provided to the Province, City and County. The Health Unit retains the servicesofthesameauditingfirmasdoes theCity. That is a requirement under theMunicipal Act, R.S.O. 1980 c.302,whichrequiresthat a local board serving more than one municipality is required to retain the same auditor as the largest municipality. The auditors are hired and paid by the Health Unit.

8 The Health Unit provides to the City and County its budget allocation requests, its annual report describing the Health Unit's activities for the year and its financial statements. The financial statements prepared by the auditors for the Health Unit are included in the City's financial report. In that report the HealthUnit is identified as a non-consolidated board. ThefinancialreportscontaintheCity'sallocationto the Health Unit, the Health Unit's Balance Sheet and its Statement of Operations.

9 The Ministry of Municipal Affairs also requires reports to be prepared by municipalities regarding their expenditures. These are contained in a documentknownasthe"FinancialInformationReturn". The City's expenditure for health services, including its allocation to the Health Unit, is included in the Return. Aswell,theReturnincludesdatarespectingthenumberofcontinuousfull-timeemployees. Included in that number are Health Unit employees.

10The evidence was that the information required in the Return is used by the Ministry of Municipal Affairs as the basis for issuing grants to the municipalities. It is also used by the Province to gather statistical data in one, standardized and consistent form from all municipalities.

ARGUMENTS ON DETERMINATION ON EMPLOYER

ONA'S POSITION

1 Counsel for ONA, Ms Trachuk, submitted that the issue of defining the employer is a threshold question under the Pay Equity Act, 1987. Once an entity is identified as the employer in a particular situation, the establishment is determined. From that, the scope of male job classes which can be used as the basis for comparison with female job classes is established. Ms Trachuk argued that the definition of employer under the Act must be viewed in this light.

2 Ms. Trachuk submitted that the Legislature delegated the task of defining the term employer for the purposes of the Act to the Tribunal. She rejected the notion that the Tribunal should apply existing definitions ofthe termemployerinthe absenceofsucha definitioninthe Pay Equity Act, 1987. She noted that in the Haldimand-Norfolk decision the Tribunal rejected the wholesale adoption of the tests for employer established by the Ontario Labour Relations Board. Instead, she submitted, the Tribunal developed four criteria or tests which ought to be utilized to determine who the employer is in a given situation. She argued thatinformulatingthese tests, the Tribunal recognized the unique nature of the Act.

3 In applying these tests, Ms Trachuk submitted that pursuant to section 71 of the HealthProtection and Promotion Act, 1983 the City and County have the financialresponsibility to provide funding to the Health Unit. She referred as well to the agreement between the City and County which established the HealthUnitandwhichprovidedthattheyweretoshareexpenses. She submitted that the Board of Health's

budget process is integrated with the budget processes of the City and County. Counsel also pointed to Ms Davidson's evidence regarding the pivotal nature of the City and County's 25% contribution to the public health services portion of the budget which indicated that without the municipal contribution the Province's 75% share of the funds would not be available. Counsel also argued that as the City and County have always appointed municipal councillors to the Board of Health, and as the Board is comprised of a majority of municipal appointees, the City and County approve the Health Unit budget at the Board of Health level. She further submitted that the City and County have overall responsibility for compensation practices at the Health Unit since it is their appointees to the Board that approve the collective agreement negotiated with ONA.

HEALTH UNIT'S POSITION

1 Counsel for the Health Unit, Mr. Judson, submitted that by not defining the term employer, the Legislature believed that the commonly established definitions of that term would apply. He argued that the Tribunal ought to use the tests established for employer which already exist, since these indicia are helpful.

2 Counsel outlined the tests which he submitted the Tribunal ought to follow in order to come to a determination of who the employer is in this case.

3 Firstly, who generally exhibits the traditional characteristics of employer? He argued that the Tribunal ought to begin its deliberations using the traditional labour relations criteria for determining the identity of the employer. Secondly, he submitted that he accepted the four tests as outlined in the Haldimand-Norfolk decision. Thirdly, Mr. Judson argued that the Tribunal should also consider what is most consistent with the practical and common sense application of the Act.

4 Mr. Judson submitted that, if the tests developed by the Ontario Labour Relations Board in the

Labourers' International Union of North America, Local 183 v. York Condominium #46 and/or Medhurst Hogg and Associates Ltd[1977]O.L.R.B.Rep.Oct645decisionareappliedinthis case, they are met by the Health Unit and by no one else. Furthermore, the Health Unit meets the tests established inthe Haldimand-Norfolk decision. Finally, he submitted that when one looks at the definition of employer which is most consistent with the practical and common sense application of the Act, it is the Board of Health Middlesex-London Health Unit whichmustbeviewed as the employer of the nurses at the Health Unit.

CITY'S POSITION

1 Mr. Barber, Counsel for the City, submitted that the Legislature intended that the Tribunal adopt the traditional tests for determining the identity of the employer which have been established and developed by the Labour Board.

2 Mr. Barber argued that it was not anticipated that the issue of employer would be litigated. He submitted that the intention of the Legislature was that where a collective agreement is in effect, one must look to that document to determine the employer.

3 Counsel submitted that to determine the meaning of the term employer under the Act, a textual analysis of the statute is required. He argued that where the Act imposes obligations on an employer, that presupposes that the proposed or alleged employer has the ability or knowledge to comply with those obligations. For example, where the Act requires that a document be posted in the workplace by the employer, it is implicit that the alleged employer have access to, or control of, the workplace in question. Inthis case, he submitted, there was no evidence to suggest that the City has any accessto, or controlof, the Health Unit premises.

4 Counsel submitted that where the Act requires the employer to provide an employee or bargaining agent witha copyofa document posted inthe workplace under the Act, it is implicit that the employer has contact with the employee or bargaining agent who requests the document. Counsel suggested that there was no evidence of any consistent pattern of contact between officers or employees of the City and the nurses at the Health Unit.

5 Furthermore, an employer under the Act should have knowledge of the compensation paid to employees and should be in a position to formulate an opinion as to the value of the work on the basis of the skill, effort, responsibility ofthe workbeingperformedand the conditions underwhich it is performed. Inthis case, Counselargued,the Cityhasno knowledge of the scheme of compensationpaid to the nurses at the Health Unit. Nor does the City have any knowledge of the value of the work that they perform.

6 Mr. Barber argued that a textual analysis of the Act as a whole leads to the conclusion that the Health Unit is the employer in this case.

7 Mr. Barber submitted, however, that even applying the tests established in Haldimand-Norfolk leads to the conclusion that the Health Unit is the employer in this case.

COUNTY'S POSITION

1 Counsel for the County, Mr. Dale and Ms Collins, submitted that as the Act does not contain a definition of employer, the Tribunal must identify the employer in each case. Ms Collins argued that the Tribunalmustinterpret the Act as a whole in order to fulfil the purposes of the legislation. She submitted, however,thatno interpretationof the Act can be justified which ignores the realities of a unionized setting wheresuchexists. Subsection 1(1) of the Act defines "bargaining agent" as a trade union as defined in the Labour Relations Act R.S.O. 1980, c.228, that has the status of exclusive bargaining agent under that statuteinrespectofanybargainingunitor units in an establishment. Secondly,subsection14(2)ofthe Act requires that the employer and bargaining agent shall negotiate in good faith and endeavour to agree on a gender neutral comparison system andapayequityplan. Ms Collins submitted that once these objectives have beenaccomplished,the matterremains squarelywithinthe purviewofthe collectivebargainingsystem as a whole. For these reasons, Ms Collins stated, to ignore the factors which contribute to the determination of the identity of the employer forpurposesofcollective bargainingisto ignorethe reality of the circumstances in which the Pay Equity Act, 1987 must be applied. In her view, a factor which is relevant forlabour relations purposesin establishing the identityofanemployercannotbe irrelevant forthe purposes of pay equity.

2 Ms Collins submitted that on the totality of the evidence before the Tribunal, the conclusion most consistent with the intent and language of the Pay Equity Act, 1987 isthatthe HealthUnit isthe employer oftheApplicant'smembers. Certainly, she argued, the evidence is not consistentwithanyconclusionthat the County, either alone or combined with the City, is the employer.

PROVINCE'S POSITION

1 Mr. Zarudny, Counsel for the Province, adopted the submissions of counsel for the Respondents and the Health Unit regarding the tests to be used to determine the identity of the employer in this case.

2 The thrust of Counsel's argument was that the Province ought not to be named the employer of the nurses in this case solely on the basis that it provides the largest portion of the Health Unit's funds. He argued that on the basis of the tests developed in the Haldimand-Norfolk decision, the Province is not the employer in this case.

DECISION OF THE TRIBUNAL

76. To determine the questionofemployerinthiscaseweintendtofollowtheapproachadoptedbythe Tribunal in the Haldimand-Norfolk decision. The following issues will be canvassed:

1 We must determine the nature of the Pay Equity Act, 1987 so that the issue of who employs the nurses at the Health Unit may be placed in its proper context.

2 Wemustdeterminewhetherwehavetheauthoritytodefine the term employerforthe purposes of the Pay Equity Act, 1987.

3 Ifwe are satisfied that the Tribunal has the authority to definethetermemployerthen we must determine which tests or criteria for identifying the employer are particularly suited to proceedings under the Pay Equity Act, 1987.

4 We must apply the tests or criteria to the fact situation before us.

ISSUES

1. The Nature of the Pay Equity Act, 1987

1 WeadopttheconclusionreachedbytheTribunalin Haldimand-Norfolk whereintheyheld that the Act contains“elementsofanti-discriminationlegislationbothinitshistoricaldevelopment and initscontent.”

78. The Tribunal was referred to several decisions respecting the manner in which this type of legislation ought to be interpreted and applied. These include: Canadian National Railway v. Canadian Human Rights Commission et al. (1987) C.L.L.C. 17,022 (S.C.C.); and Manjit Singh Pannu, Jaspal Singh Kang and Nirmaljit Singh Gill v. Prestige Cab Co. (1987), 1986 CanLII 6476 (AB CA), 8 C.H.R.R. D/3911 (Alta.C.A.). These decisions stand for the principle that ininterpretinghumanrightsoranti-discriminationlegislationone must,

while ensuring that the words of the statute are given their plain meaning, nevertheless endeavour to give full recognition and effect to the rights which the statute aims to promote.

79. In our view, this principle is statutorily recognized by section 10 of the Interpretation Act, R.S.O.1980, c.19 which provides that:

80. Every Act shall be deemed to be remedial whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

81. The labour relations component of the Act is recognized in the collective bargaining framework for achieving pay equity in unionized work places. As the Tribunal noted in Haldimand -Norfolk:

The Act imposes the obligation to negotiate pay equity plans and provides a detailed mechanism by which pay equity will be accomplished. The lawgivesclearrecognitionto the history and structure of collective bargaining in this province...

2 We agree with this reasoning.

2. Does the Tribunal have the authority to define the term employer for the purposes of the Pay Equity Act, 1987?

1 It is clear that theAct doesnotprovideadefinitionof employer. The Act does, however, define the term "establishment" in terms of employees of an employer in a geographic division. In Haldimand-Norfolk, the Tribunalwasattemptingto determine whetherthe Haldimand-Norfolk RegionalPoliceForce ispart of the establishment ofthe RegionalMunicipalityofHaldimand-Norfolk forthe purposes ofthe Pay Equity Act, 1987. It was in that context that the Tribunal determined that it ought to assess the meaning of employer.

83. The issue of establishment is not directly before this Tribunal. In our view, however, we must identify the employer of the nurses at the Health Unit since that issue is before us. Subsection 30(1) of the Act provides that:

30(1) The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes.

2 Pursuant to this provision,notonlydoestheTribunalhavethestatutoryauthoritytodecidethe issue but in the circumstances of the case we must decide it in a manner consistent with the purpose, language, structure and scheme of the Act. In the early stages of the implementation of pay equityitisessentialthat

the community be afforded some guidance as to the manner in which issues before the Tribunal will be resolved.

3. Which tests or criteria for determining the identity of the employer in a particular case are best suited to proceedings under the Pay Equity Act, 1987?

1 In our view, the Act's silenceregardingthe meaningofemployer does not lead us to the conclusion that the Legislature intended that the Tribunal adopt the traditional labour relations tests for defining that term. As the Tribunal noted in Haldimand-Norfolk, where the Legislature intended to limit the Tribunal's jurisdiction it did so. For example, the term "establishment" is assigned specific geographic limits. As well, the definition of bargaining agent makes reference to the Labour Relations Act. In our view, therefore, had the Legislature intended that the Tribunal limit its analysis of the meaning to be attached to the term employer to that found in labour relations jurisprudence it could have done so explicitly.

2 The Tribunal was referred to several decisions regarding the manner in which one determines the meaning of the term employer in a particular case. These include: Cormier v. Alberta Human Rights Commission et al. (1984), 85 C.L.L.C. 16,018(Alta.Q.B.);and Reginav.Pereira (1988), 1988 CanLII 3477 (AB QB), 20 C.C.E.L. 187 (Alta. Q.B.). These decisions hold that in determining the meaning of employer, regard must be had to the scheme and purpose of the legislation and that the determination cannot be inconsistent with the provisions of the statute of which the term forms a part.

3 It was in this context that the Tribunal in Haldimand-Norfolk [see Haldimand-Norfolk (No.3) (1989) 1 P.E.R. 16] rejected the wholesale adoptionofthe definition of employer developed pursuant to the provisions of the Labour Relations Act. We concur withthatapproach. In our view, it is incumbent upon us to determine the meaningofemployerwhichisparticularlysuitedto both furthering the objectives of the Act and recognizing the realities under which the parties to pay equity plans must carry out their statutory obligations.

88. As noted earlier, the Tribunal has been urged to adopt the labour relations criteria for determining the issue of employer and in particular those criteria outlined in the York Condominium decision. In that case, the Board indicated that in determining which of two or more entities is the employer of certain employees, it has applied the following criteria:

(1) Thepartyexercisingdirectionandcontrol over the employees performingthework...

(2) The party bearing the burden of remuneration

(3) The party imposing the discipline

(4) The party hiring the employees

(5) The party with the authority to dismiss the employees

(6) The party who is perceived to be the employer by the employees

(7) The existence of an intentionto create the relationship of employer and employees...

89. In the Haldimand-Norfolk decision the Tribunal accepted as helpful the following criteria from the York Condominium decision:

3 the party exercising direction and control over the employees performing the work;

3 the party bearing the burden of remuneration; and

3 the party who is perceived to be the employer by the employees.

4 We agree that these criteria are of assistance in determining the identity of an employer under the Pay Equity Act, 1987. The identity ofthepartythatexercisesdirectionandcontroloveremployees may beofassistanceinestablishing who it is that makes policy decisions regardingthe natureofthe workto be done and the assignment of responsibility for that work. The focus of the Act is on the broad issue of fundamental control over compensation practicesand forthis reasonweare ofthe viewthatidentifyingthe partywhichbearstheburdenofremunerationishelpful to our deliberations. This is especially sosince,as the Haldimand-Norfolk decision points out at paragraph 49, the Act "makes specific provision for a percentage ofpayrollto be directedtowardswage adjustmentstoachievethe purpose ofthe Act.” Finally, the perceptionofthe employeesmayalsobe ofassistancesincethe"conduct"ofanallegedemployerwhich led to the belief or perception that he or she is the employer may be ofsome relevance. The only caveat we would add, however, is that the Tribunal must review that perception or belief with a view to determiningwhether,onthe evidence;itwas reasonable for an employeeto believe thata partywasinfact his or her employer.

5 In Haldimand-Norfolk, the Tribunal established the following criteria or tests for determining the identity of the employer in each case:

1. WHO HAS THE OVERALL FINANCIAL RESPONSIBILITY?

Indicia of this test include: Who has the responsibility for the budget? Who bears the financialburdenofcompensationpractices,and the burdenofwage adjustmentsunderthe Act? Who is responsible for the financial administration of the budget? What is the shareholderinvestmentor ownership?Who bearsthe responsibilityofpickingupthedeficit or benefiting from the surplus?

2. WHO HAS RESPONSIBILITY FOR COMPENSATION PRACTICES?

The indicia forthis criteria include:Who setsthe overallpolicyforcompensationpractices? Who attaches the value of a job to its skill, effort, responsibility and working conditions? What is the labour relations reality, who negotiates the wages and benefits with the union or sets the wage rate in a non-unionized setting?

3. WHAT IS THE NATURE OF THE BUSINESS, THE SERVICE OR THE ENTERPRISE?

Within this test the following are helpful indicia: What is the core activity of the business, service or enterprise? Is the work in dispute integral to the organization or is it severable or dispensable? Who decides what labour is to be undertaken and attaches that responsibility to a particular job? What are the employees' perceptions of who is the employer?

4. WHAT IS MOST CONSISTENT WITH ACHIEVING THE PURPOSE OF PAY EQUITY ACT?

If there is more than one possible employer, it assists the Tribunal in its determination to make reference to the purpose and objectives of the Pay Equity Act, 1987.

92. It is important to note that the Tribunal clearly stated that these tests were not all encompassing. Rather, there was a recognition that future cases might necessitate amendments to those tests. Nevertheless, we are of the view that these criteria are particularly appropriateindetermining the identity of the employer in this particular case.

93. Application of Tests to Facts

(1) WHO HAS OVERALL FINANCIAL RESPONSIBILITY?

Who has responsibility for the budget?

1 The evidence clearly demonstrates that the largest contributor to the health unit budget is the Province. In 1988, of the total budget of approximately $20 million, the province contributed approximately $18 million.

2 The City and County fund the Health Unit budget to the extent of 25% of the public health services portion of the budget. In 1988, the City contributed slightly less than $2 million while the County's share was approximately $200,000. It must be noted that there are programs to which only the City and Province contribute and others which neither the City nor County assist in funding.

3 In our view there was insufficient evidence to corroborate the testimony of Ms Davidson that the 25% municipal share of the public health services budget is pivotal to the funding process and that any increase in that sure would mean a proportionate increase in provincial funding. In this regard we accept the evidence of Mr. Rowe.

4 It is also clear that the operating budget is prepared for the Province to review and approve. The Province reviews the budget submission of the Health Unit on a line-by-line basis. The Province must approve not only the Health Unit expenditures but also the addition of any staff for those programs for which it will contribute funding.

97. Neither the City nor the County receive the entire Health Unit budget, although there was evidence tosuggestthattheycouldreceive it if they requested a copy. The evidence was thattheyhadnevermade such a request. The City and County receive descriptions of the Health Unit's programs and the funds to be allocated to those programs. Neither the City nor the County have the right to amend the budget on a line-by-line basis. There was evidencethatononeoccasiontheCityreduceditsallocationtothe Health Unit by $4500.00. However that situation involved a reduction to all City boards and commissions, in ordertoprovideadditionalfundsfortheCity'sroad resurfacing program. There was no evidence thatthe reductionwasaimedspecificallyatreducing the Health Unit budget. Nor was there any consideration by

the City of any specific Health Unit programor service which needed to be reduced so as to make funds available for the road resurfacing program.

5 There was evidence of a significant amount of interaction between the Health Unit and the municipalities and their elected councils relating to the Health Unit's allocation requests. However, that interaction relates to the process whereby funds are made available to the Health Unit rather than any overall control over the Health Unit budget.

6 The evidence also disclosed that the Health Unit's budget submissions are included in the financial statements of the City and County. The municipalities also include their expenditures for public health servicesinfinancialreturnssubmitted totheMinistryofMunicipalAffairs. Finally, its calculation of full time employees employed in health services, the City includes anumberofHealthUnitstaff. Again, there was no evidence, however, that these factors in any way amounted to control over the Health Unit's budget.

7 The Health Unit has carriage of its budget process. Once prepared, the budget is reviewed on a line-by-line basis bythe Board of Health members. It is that Board which can amend the budget items if it so chooses. It must be kept in mind that while there is no requirement that the Board members appointed by the municipalities must be municipal councillors, the evidence disclosed that this in fact is what has always occurred. Although one can speculate that the municipal appointees may consider the interests of their respective municipalities to some extent when they consider the Health Unit's budget, there was no evidence to suggest that this played a role in the budget process.

8 Except for the $4500 reduction in City funding and the directive by City Council in 1986 to its appointees on the Health Unit regarding the Integrated Homemaker Program, there was no evidence to establish that either the City or County have ever attempted to influence the budget process at the Health Unit.

9 In our view, the phrase "responsibility for the budget" encompasses more than merely who can give ultimate approval for the budget, or who it is that provides funding. This is especially true in the public sector where agencies are dependent upon funding from governments to carry on their responsibilities. Rather, this notion includes factors such as who is responsible for establishing the budget and is ultimately accountable for its administration. In this case, it is the Health Unit which is responsible for designing a budget which is responsive to the needs of the community which it serves and which is accountable for ensuring both that the budget commitments are fulfilled and that proper fiscal management exists.

10 On the basis of the evidence, therefore, we are of the view that the Health Unit is responsible for its budget.

11Before leaving this discussion we wish to make it clear that we reject the notion that to determine the employer one looks only to the source of the funding which allows a particular entity to exist. In

LondonandDistrict ServiceWorkers' Union, Local220, S.E.I.U.,A.F.L.,C.I.O.,C.L.C.,v.Waterloo County Roman Catholic Separate School Board [1977] O.L.R.B. Rep. Dec. 856, the Ontario Labour Relations Board held that students who were employed by the School Board during the school vacation period and whose wages were paid both out of funds provided by the School Board and funds provided by government assistance, were the employees of the School Board. At page 857 of its decision the Labour Board held that:

...it seems clear that by accepted labour relations criteria the School Board is in the relationship of employer to the students: it .interviews them, hires them and puts them to workfor a period oftimeatafixedwagecomputedhourly,weeklyormonthly. The work performed is of benefit to the School Board and to that end it assigns, directs and supervises the tasks performed .... Within that framework the students must be seen as employees of the School Board for the purposes of the Labour Relations Act.

105. In Association of Commercial and Technical Employees, Local 1704, C. L. C. v. Province of Ontario Board of Internal Economy, [1980] O.L.R.B. Rep. Jan. 88, the issue was who was the employer of employees in New Democratic Party Constituency offices in the Province of Ontario. The Ontario Labour Relations Board found thatthe Board ofInternalEconomy, a governingbodyofthe Office of the Legislative Assembly, allocates provincial funds to provide constituency offices to Members of the Legislature. The Labour Board found that the individual Member of the Legislative Assembly is the employer of any person that he or she hires and directs within his or her constituency office. At page 89 of the decision the Board stated that:

...the BoardofInternalEconomyislittlemorethana paymaster,havingno contactwiththe employees other than in matters related to payment of the allocated funds...

2 The Board went on to state that the extent of the direction and control by the individual Member "makes the mere mechanics of payment of wages insufficient in itself to establish the Board of Internal Economy as employer." Finally, the Board held that "...the funding and administration of wages pursuant to government programs do not of themselves cast a government body in the role of employer.”

3 We agree with this reasoning. While funding is an important indicia of financial responsibility, nevertheless, when balanced against the other criteria, it is our view that the issue of funding is not determinative of the issue of employer in this case.

Who bears the financial burden of compensation practices, and the burden of wage adjustments under the Act?

1 It is clear that the Province provides approximately 90% of the Health Unit's total budget. Since the evidencedisclosedthat85% ofthe budgetiscomprisedofemployees'ssalaries,anargument can be made that the financial burden for compensation practices and wage adjustments rests with the Province. The evidence also established that the Health Unit's budget is increased annually as a result of percentage increases authorized by the Province.

2 It must be remembered, however, that while the Health Unit is dependent on funding from the Province, City and County, nevertheless, it is the Board of Health which must prepare the budget upon which the allocation of funds is made. Furthermore, it isclearfromtheevidencethat,where the Board of Health has committeditselftothe payment ofwageswhichresultsinthe HealthUnit exceedingits available

revenues fromthe Province,ithasindependentlydecidedthatreductions would be made from other areas of its budget in order to comply withtheburdentocompensateitsemployees. In our view, therefore, the financial burden for compensation and wage adjustments is the responsibility of the Health Unit.

Who is responsible for the financial administration of the budget?

110. The financial administration of the budget is the responsibility of the Health Unit. The Health Unit is responsible for its own payroll and personnel. The acquisition by the Health Unit of motor vehicles, office equipmentandotherchattelsdonotrequiretheapprovalofeithertheCityortheCounty. This is, however, not true in the purchase and ownership of real property both of which require City and County approval. The uncontradicted evidence of Mr. Robert Rowe was that the manner in which expenditures are made by the Health Unit is decided by Mr. Rowe and Dr. Pudden, under the guidance of the members of the Board of Health. Funds are transferred to the Health Unit by the City, County and by the Province and Mr. Rowe pays the Health Unit's expenses from these funds.

Who bears the responsibility of picking up the deficit or benefiting from the surplus?

111. There has never been a budget deficit at the Health Unit. If there is ever a surplus in any budget year, it would result in a reduction in the allocation of funds by the City and Countythe next budget year.

(2) WHO HAS RESPONSIBILITY FOR COMPENSATION PRACTICES?

Who sets the overall policy for compensating practices?

1 The members of the Board of Health ratify the collective agreement with ONA. The majority of thoseBoard membersare appointedbythe Cityand County and one could argue, therefore, that ineffect themunicipalitiesultimatelyratifythecollectiveagreementswithONA. In our view, while the inference was raised, there was no evidence thatthe Cityor Countyhave inany way influenced the collective bargaining processbetweenONAandtheHealthUnit. Nor was there any evidence that in voting to ratify collective agreements with ONA, Board of Health members have based their decisions on how the interests of the municipalitieswhichappointedthemmight be protected or furthered. As well, therewasnoevidencethat either the City or County received reports of the content or results of the collective bargaining process.

2 The evidence of Mr. RobertRowe,whichwasnotcontradicted,wasthatthesingle, most important factor relevant to the collective bargaining process and the setting of salaries was the agreement reached byONAandtheHealth Unit. It is the collective agreement which governs the wage ratesofthenursesat the Health Unit. This is so even where the wage increase negotiated by the parties is greater than the percentage increase in funding approved by the Province.

Who attaches the value of a job to its skill, effort, responsibility and working conditions?

114. On theevidence,itistheHealthUnitwhich hires nurses and attaches the value of their jobs to their skill, effort, responsibility, and working conditions. It is the Health Unit which develops job content and qualifications and which agrees to compensation which takes into account the above-noted factors when agreeing to compensate its employees. There was no evidence that either the City, County, or Province have any understanding of the value of the nursing work performed at the Health Unit or the skill, effort, responsibility and working conditions attached to that work.

What is the labour relations reality; who negotiates the wages and benefits with the union or sets the wage in a non-unionized setting?

1 There is clearly a history of collective bargaining between the Health Unit and ONA. For labour relations purposes, ONAhasrecognizedinthe collective agreementsto which it has been a party, thatthe employerofitsmembersistheBoardofHealth Middlesex-London Health Unit. In our view, thefactthat a bargaining agent has recognized a party as the employer of its members is of persuasive value. It is not determinative of the issue of employer in all cases, however.

2 In the situation before us, it is the Board of Health which has the ultimate authority to ratify a collective agreement reached with ONA. Clearly, it is the Board of Health which negotiates wages and benefits with ONA.

(3) WHAT IS THE NATURE OF THE BUSINESS, THE SERVICE OR THE ENTERPRISE?

What is the core activity of the business, service or enterprise? Is the work in dispute integral to the organization or is it severable or dispensable?

1 With the enactment of the Health Protection and Promotion Act, 1983, it appears that the provision of public health services is entrusted to local boards ofhealth. Pursuant to section 4 of that Act it is the local board of health which must superintend, provide or ensure the provision of health programs and services required under the legislation. It is also the local board of health which, pursuant to section 7 of the Act, must comply with the guidelines published by the Ministry of Health for the provision of the mandatory health programs and services.

2 While it may be argued that as the City and County are required to provide funding to the Health Unit and as their appointeesformthe majorityonthe Board ofHealth, theycontrolthe Board and therefore the provision of health programs and services. What is clear from the evidence, however, is that the City andCountyplayaminorroleinthefundingoftheHealthUnit as compared to theProvince. Secondly, not all the programs and services are offered to the County, nor does it provide funding for all programs and services. Therefore, the City and County do not control the Board of Health through control of funding.

3 As for municipal control over the Board of Health through their appointment of a majority of the Board members, there was no evidence that those members are merely agents of the municipalities which appointed them. There was also no evidence that the Health Unit regularly reports to City or County Councils or provides minutes of its meeting to those Councils. Nor was there convincing evidence which demonstrated that the City and County, throughtheir appointeesonthe Board ofHealth, have any control over the mandatory programs and services to be delivered by the Health Unit.

120. The Tribunal was referred to the decision of the Ontario Court of Appeal in Re Morrision and the City of Kingston (1938), 1937 CanLII 131 (ON CA), O.R. 21 (O.C.A.). That case dealt with a the jurisdiction of the City of Kingston to pass a by-lawprohibitingthe possessionofgamblingmachineswithout a licenceobtainedfromthe Clerk of the City. The By-law was enacted pursuant to the general provisions of the Municipal Act which authorizedby-lawsfor the health,safety,moralityandwelfareoftheresidentsofamunicipality. The Court held thatthe municipalitycould notenactaby-lawpurportingto licencethe useofgamblingmachineswhich was prohibited by the Criminal Code. In commenting on limitations to the general provision under which the City of Kingston enacted its by-law, Middleton, J.A., at page 26 held that:

Dealing with the subject matter of the enactment authorized one finds that matters of "health" are generallyregulatedbyThe Public HealthAct,R.S.O., 1927,ch. 262; matters of"safety"are covered by a multitude of Acts of which The Highway Traffic Act,R.S.O. 1927, ch. 251, and The Factory, Shop and Office Building Act, R.S.O. 1927, ch. 275, will serve as examples: matters of "morality" are generally dealt with by Parliament of the Dominion. The Criminal Code deals with most moralquestions.Morespecific questions are dealt with by the Opium and Narcotic Drug Act, R.S.C 1927, ch. 144, and other familiar legislation. These topics are entirely removed from the sphere of legislation of municipal councils.

4 In our view, theHealth Protection and Promotion Act, 1983 has conferred an express authority on localboardsofhealthtodeliverpublichealthservices. Therefore, applying the analysis in Re Morrison to this case, neither the City nor the County has the authority to regulate the provision of public health services or to regulate the affairs of the Board of Health.

122. In theHaldimand-Norfolk decision, the Tribunalheld that pursuant to section 2ofthe PoliceAct, the responsibility for policing is a municipal function. At paragraph 54, the Tribunal held that:

The core activity of the police force is "policing" and it is the responsibility of the Municipality. Given this responsibility, it is obvious that the police force is integral and not dispensable; there is a statutory obligation for the Municipalityto providepoliceservices.

5 The situation before us is quite different. There is an absence of any clearly enunciated declaration that the provision of public health services is the.responsibilityofthemunicipality. The core activity of the Health Unit is the provision of public health programs and services in a manner which appears to be relatively independent from the municipalities it serves.

Who decides what labour is to be undertaken and attaches that responsibility to a particular job?

124. Pursuant to subsection 55(2) of the Health Protection and Promotion Act, 1983 a board of health may pass by-laws respecting the appointment and duties of officers and employees. Furthermore, pursuant to subsection 70(1) of the Act, every board of health may engage the services of public health nurses to carry out the functions of the board of health in connection withthe mandatory health programs and services. Clearly, it is the Board of Health which can decide the work that officers and employees are to undertake and which job or position is responsible for undertaking certain functions. There was no evidencethatthe City, County, or Provincedirectedthe workatthe HealthUnit or inanywayensuredthat the work was being carried out and responsibilities were assigned.

What are the employees perceptions of who is the employer?

125. The Tribunal did not hear any evidence from members of ONA that was determinative with respect to their perception as to who is their employer.

(4) WHAT IS MOST CONSISTENT WITH ACHIEVING THE PURPOSE OF THE PAY EQUITY ACT?

1 The position of the Applicant is that a finding by the Tribunal that the City and County are the employers of the nurses atthe HealthUnit would be consistent withthe purpose and objectivesofthe Act. ONA's position is that it is unlikely that male comparators will be found by all or any of the female job classes at the Health Unit if the Board of Health is found to be the employer. ONA submitted that if comparisons cannot be made between its members and employees in the City and County, there is a possibility that some of its members will not be able to obtain the benefits of the Act.

2 In our view, it is essential that the purpose and objectives of the Act are considered when it is unclearwhichofseveralpotentialemployersisthe employerof ONA's members at the Health Unit forthe purposes ofpayequity. We must not ignore the powerful language of the preamble and purpose provisions in the statute. Thatwillensurethat the discrimination which this legislation was enacted to remedy will be considered when determination of issues under the Act arise. Nevertheless, it would be inappropriate to determine the identityofthe employerin this case simply on the basis that a finding thatthe Cityor County are the employers of ONA's members at the Health Unit will furnish those employees with male comparatorsagainstwhichtocomparefemalejobclassesattheHealthUnit. Similarly, where the evidence points inescapably to the conclusion that one party is the employer, it would be inappropriate to make a finding inconsistent with the evidence simply on the basis that to do otherwise would deprive female job classes of male comparators in a particular workplace.

128. The Tribunal in Haldimand-Norfolk held at paragraph 57 that:

Where there is more than one possible employer, the Tribunal should decide what is necessary, fair,and workable withinthe structureofthe Pay Equity Act, 1987 and should make a finding that best serves the needs of those the Act is aimed at benefitting.

3 We agree with this principle. We would only add that in deciding what is "necessary, fair, and workable" we must not ignore the evidence, or lack of it, and come to a determination for which there is no evidentiary basis.

DECISION OF THE TRIBUNAL

130. In the circumstances of this case, and having regard for the evidence before us, it is our view that the employer ofONA'smembersis the Board of Health Middlesex-London Health Unit. It is the Board

of Health which has the responsibilityforestablishingitsbudget,subjectto final approval by the Province; for the financial administration of that budget; for compensation practices at the Health Unit and for attaching value to the work performed by the nurses at the Health Unit. Furthermore, it is the Board of Health which negotiates collective agreements with ONA and also bears the financial burden of wage adjustments. The responsibility for the delivery of public health programs and services is on the local boards of health. Finally, it is the Board of Health which is responsible for deciding the work to be undertaken and attaching the responsibility to a particular job.

2 For all these reasons, the Tribunal finds that the employer of the nurses at the Health Unit is the Board of Health Middlesex-London Health Unit. Accordingly, this Application is dismissed.