Ontario Nurses' Association v. Women's College Hospital, 1989 CanLII 1460

0008-89; 0011-89 Ontario Nurses' Association, Applicant v. Women's College Hospital, Respondent; Women's College Hospital, Applicant v. Ontario Nurses' Association, Respondent

Before: Raphael Palumbo, Vice-Chair; Susan Genge and Sharon Laing, Members

Appearances:MaryCornish, LoriNewton, Valerie MacDonald and Felicity Briggs forthe ONA; Janice Baker and Patrick Kelly for WCH; Anneli LeGault and Don King for Stevenson. Kellogg, Ernst & Whinney

Cite As: Women’s College Hospital (No.1) (1990) 1 P.E.R. 53

Jurisdiction

The Tribunal finds that it has jurisdictionto hearthe Applications as the preconditions to it proceeding are satisfied.

Practice and Procedure - Interveners

The Union opposed the Hospital’s use of a particular job evaluation system alleging that the system was not gender neutral. SKEW, the company which created and sold the system sought to intervene before the Tribunal on the basis that the Tribunal’s decision could haveanadversecommercialimpactonit. The TribunalrefusedSKEW’srequestfindingthatitdid notfallwithinthe classesofpartiesidentifiedinthe Act. Further, the issue in this case was not the gender neutrality of SKEW's plan in general. Rather it is the gender neutrality of the Hospital's proposals regarding the comparison system to be used to evaluate the jobs in that particular workplace. SKEW's interest is collateralto the mainissue intheseproceedings,and no order of this Tribunal can be directed at it.

Practice and Procedure - Pleadings - Motion to Strike

The Association moved to strike certain paragraphs of the Hospital'sResponseonthe groundsthatitwas a request in the nature of separate and independent relief. TheTribunalreserveditsdecisionuntil it heard all the evidence and final argument.

Compétence

Le Tribunal conclut qu'il a compétence pour traiter des plaintes déposées parce que les deux conditions préalables sont respectées.

Intervention

Le syndicat requérant prétendait que l'intimé, l'hôpital, ne s'était pas efforcé de convenir d'un système non sexiste de comparaison. SKEW a déposé une requête en intervention en faisant valoir qu'il avait un intérêt dans l'instance: la décision du Tribunal pourrait avoir des conséquences néfastes sur ses affaires. Le Tribunal a rejeté la requête en intervention de SKEW. SKEW n'a pas le droit d'intervenir en qualité de partie en vertu de la Loi ou la Loi sur l'exercice des compétences légales. Dans la présente cause, le litige ne porte pas sur le caractère sexiste ou non sexiste du programme de SKEW en general mais plutôt sur le caractère sexiste ou non sexiste du programme de SKEW en général mais plutôt sur le caractère sexisteounonsexiste des propositions de l'hôpital en ce qui concerne lesystème de comparaisonquidoit être utilisé pour évaluer les emplois au sein de ce lieu de travail particulier. SKEW n' est pas tenu de répondre aux exigences de la Loi, mais l'hôpital oui. L'intérêt de SKEW est accessoire au point litigieux principal de l'instance et aucune ordonnance du Tribunal ne peut le viser.

Pratique et procédure - Requête pour rayer

Une motion a été déposée en vue de rayer certaines dispositions de la défense de l'hôpital pour le motif qu'il s'agit d'une demande de recours séparé et indépendant qui nest pas permise dans une défense. Le Tribunal a remis toute décision sur la motion jusqu'à ce qu'il ait entendu la preuve et la plaidoirie finale.

DECISION OF THE TRIBUNAL, NOVEMBER 15, 1989

1This is an Application by the Ontario Nurses' Association ("ONA") that the Respondent, Women's College Hospital (the "Hospital") has acted contrary to the Pay Equity Act, 1987, S.O. 1987, c.34 (the "Act") and in particular has failed to negotiate in good faith for a gender neutral comparison system and a pay equity plan for its bargaining unit. ONA alleges that the Respondent has breached sections 4(1) and (2), 5, 6(1), 7(1) and (2), and 14(1) and (2) of the Act.

2The Respondent Hospital hasalsofiledanApplicationallegingthat ONA has negotiated in bad faith contraryto section14(2)ofthe Act in that it has proposed a comparison system which does not meet the requirements of the Pay Equity Act, 1987.

3On September 12 and 13, 1989, the Tribunal heard submissions regarding several preliminary matters. At that time, the two Applications were consolidated pursuant to Rule 12 of the Tribunal's Rules of Practice and they will be heard together.

4. Leave was granted to ONA to amend its statement of Facts and Issues. Paragraph 41.3 of ONA's Statement of Facts and Issues was amended and now reads:

41.3 A declaration that the comparison system adopted and proposed by the Respondent Employer is gender biasedand unlawfulinthe circumstancesofthis case and cannot be the subject of negotiations or agreement;

5. The relief sought by ONA in paragraph 41.4 of its Statement of Facts and Issues was amended so that it now reads:

41.4 An Order that the Respondent Employer bargain in goodfaithwiththeApplicant Uniontowards the executionofa genderneutral comparison system and a payequityplan forthe bargainingunits.Inparticular,the partiesshould be directedtocontinue tonegotiate a pay equity plan using a designed a priori comparison system and utilizing the services of SUNY or HRC as a consultant, such services to be at the expense of the Hospital.

6. The first preliminary matter argued at the hearing on September 12, 1989 was whether the Tribunal had the jurisdiction to deal with the complaints under section 25(1)(a) of the Pay Equity

Act, 1987. The Tribunal's jurisdiction to consider the complaints depends upon whether there has been a reasonable opportunity for a settlement to be effected at the Review Services stage. Counsel for ONA and the Hospital submitted an Agreed Statement of Facts which outlines the history of the pay equity negotiations between them.

4Having regard to the factors set out in Ontario Nurses' Association v. Regional Municipality of Haldimand-Norfolk and Haldimand-Norfolk Regional Board of Commissioners of Police [now reported as Haldimand-Norfolk (No. 1) (1989) 1 P.E.R. 1], for assessing what is a reasonable opportunity for a settlement to be effected, we are satisfied that we have jurisdiction to hear these complaints. It is clear from the Agreed Statement of Facts that the parties met several times before referring the matter to a Review Officer, that the matter was with the Review Officer for four months, and that there was a sufficient opportunity for the Review Officer to effect a settlement. There was neither a settlement effected nor an Order made by the Review Officer pursuant to subsection 24(3) of the Pay EquityAct,1987. As bothpreconditions setout insection25(1)(a) ofthe Act have beenmet,the Tribunal has jurisdiction to hear the complaints before us.

5The second preliminary matter raised was an application by ONA to strike paragraphs 28(1), (3), (4), (5), (6), and (7) of the Hospital's Response to ONA's Application. Counsel for ONA submitted that the relief sought by the Hospital in the above-noted paragraphs was in the nature of separate and independent relief which was not permitted in a Response.

6We are of the view that we ought to proceed to hear the evidence and final argument in the Applications priorto ruling on the motiontostrikethe above-noted paragraphs inthe Hospital'sResponse and accordingly, we are reserving our decision.

APPLICATION FOR INTERVENTION

10. On September 13, 1989, an application was made by Stevenson, Kellogg, Ernst & Whinney ("SKEW") to be added as a party to these proceedings. Counsel for SKEW submitted that the complaint by the Ontario Nurses' Association alleged the following:

1 that Women's College Hospital was bargaining in bad faith, and

2 that the Hospital was proposing to use a job evaluation system that is gender biased, which does not meet the requirements of the Pay Equity Act, 1987 and which therefore cannot be the subject of bargaining.

1 It is with respect to the second allegation that SKEW wishes to intervene. SKEW wishes to participate intheseproceedingsasafullparty. It wishes to cross-examine ONA's witnesses, lead its own expert evidence and make submissions on fact and law.

12. Extensive argument and review of the relevant case law was made regarding SKEW's application. We propose to consider SKEW's application in light of the following considerations:

1 What are the implications for adding parties raised by subsection 32(1) of the Pay Equity Act, 1987?

1 Is subsection 32(1) an exclusive list of the parties in light of the structure of the Act?

1 Does the Tribunalhave the authority to add other parties by virtue of section 5 of the Statutory Powers Procedure Act, R.S.O. 1980, c.484?

1 What considerations are relevant to interventions?

1 Should SKEW be granted party status in light of these considerations?

1. THE PAY EQUITY ACT, 1987 AND THE STATUTORY POWER PROCEDURE ACT

13. TheinitialconsiderationrespectingtheTribunal'sauthority to add parties involves the interpretation of subsection 32(1) of the Act. Counsel all made extensive submissions, which we summarize here.

SKEW's Position

1 Counsel for SKEW, Ms Legault, submitted that subsection 32(1) of the Act essentially ensures that the persons or entities specified must be allowed to participate at a hearing. Those are the persons or entities that are parties as of right. Counsel further submitted that while subsection 32(1) contains a list of those parties who must be present at a hearing, the list is not exhaustive; thus the Tribunal must apply the common law to determine whether any other person or entity should be a party to the proceedings.

2 Ms Legault submitted that even though the Pay Equity Act, 1987 is silent on the issue of whether the Tribunal could add parties, the right to do soisimpliedwhereitisnecessaryto effectively exercise the Tribunal's powers. Counsel referred to subsection 25(1) of the Act which provides that the Tribunal shall hold hearings in certain circumstances,whichimpliesa requirement thatit comply with the duty of fairness and the rules of natural justice. Therefore, it would be contrary to fundamental justice for the Tribunal to proceed with a hearing in the absence of an interested party.

3 Ms Legault submitted thatsection29ofthe Act, whichauthorizes the Tribunal to make rules for its procedure gives the Tribunal the right to make rules allowing for persons to be added as parties.

4 In making her argument, Ms Legault referred to the following case law: Fishing Vessel Owner's Associationof BritishColumbiaetal.v.AttorneyGeneralof Canadaetal. (1985), 1 C.P.C. (2d) 312 (F.C.A.); Director of Investigation and Research under the Combines Act v. Newfoundland TelephoneCompanyLimitedandNewfoundlandBoardof CommissionersofPublicUtilities, 1987 CanLII 34 (SCC), [1987] 2 S.C.R. 466 (S.C.C.).

The Hospital's Position

1 Counsel for Women's College Hospital, Ms Baker, submitted that there are three sources for determining who the parties in a proceeding before the Tribunal will be. These are: (1) subsection 32(1) ofthe Pay Equity Act, 1987; (2) section 5 of the Statutory Powers Procedure Act; and (3) sections 25 and 29 of the Pay Equity Act, 1987.

2 Ms Baker submitted that subsection 32(1) specifies those parties who have a statutory right to be present ata hearing as full parties and who willbe bound bythe Tribunal'sordersand decisions as outlined in section 26 of the Act. The second source for adding parties is section 5 of the Statutory Powers Procedure Act. Counsel argued that that provision allows, or even requires, the Tribunal to give status to persons or entities who are not specified in section 32(1) of the Pay Equity Act, 1987, but who are otherwise "entitled by law" to be parties. The third source for adding parties, submitted Ms Baker, are sections 25 and 29 of the Act. Ms. Baker adopted Ms Legault's arguments concerning these statutory provisions.

ONA's Position

20. Ms Cornish, counsel for the Ontario Nurses' Association, submitted that section 5 of the Statutory Powers Procedure Act provides that one look to the definition of party in the statute under which proceedings arise. If the statute sets out the parties then that is who the parties to the proceeding are. Counselsubmittedthatsubsection32(1) ofthe Act specifiesthatonlyemployers,objectors,complainants, employees or bargaining agents are parties to proceedings before the Tribunal. Nowhere in the Act are consultants or their firms referred to as parties. Since the Legislature has specifically directed its mind to who the partiesshould be, theythereforedid notintend consulting firms to have partystatus underthe Act.

Decision of the Tribunal

21. Subsection 32(1) of the Act provides:

(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 payequity plan relates to a bargaining unit) or the employees to whom the plan relates (if the plan does not relate to a bargaining unit).

1 In our view, subsection 32(1) clearly specifies the parties to a proceeding before the Tribunal. They are the employer, the objector or complainant and the bargaining agent (if the pay equity plan relates to a bargaining unit) orthe employeestowhomthe planrelates(ifthe plandoes not relate to a bargaining unit).

2 It is our view that we ought to determine who the parties to a pay equity dispute are on the basis of the objectives, structure and scheme of the Act. Subsection 32(1) of the Act mirrors, and is consistent with, other provisions inthe statute. That is, the Act provides that certain persons and entities have rights and obligations under the Act and it is precisely those persons and entities who are specified as parties in subsection 32(1).

24. The purpose or objective of the Act istoredress systemic genderdiscriminationincompensationfor work performed byemployeesinfemalejobclasses. The preamble states that "whereas it is desirable that"

affirmative action be taken to redress gender discrimination in the compensation of employees employed in female job classes in Ontario" the Act was enacted. The Legislature established a structure or scheme by which it believed that this purpose or objective could be achieved.

3 Section 3 provides that the Act "applies toallemployersinthe privatesector inOntario who employ 10 or more employees, all employers in the public sector, the employees of employers to whom this Act applies and to their bargaining agents, if any".

4 Section 12 of the Act provides that to determine if pay equity exists for each female job classinan establishment, employers must, using a gender neutral comparison system, compare female job classes in eachestablishmentoftheemployerwithmalejobclassesinthesameestablishment. Clearly, this obligation is reserved for employers to whom the Act applies.

5 Section 14 of the Act requires that in any establishment in which any of the employees are represented by a bargaining agent, it is the employer and the bargaining agent who are charged with the obligation to negotiate and endeavour to agree on a pay equity plan for the bargaining unit.

6 Subsection 14 (4) provides that where there is agreement on a pay equity plan by an employer and bargaining agent, they must execute the agreement and the employer must post a copy of the plan in the workplace.

7Where there is no bargaining agent, the responsibility for preparing and posting apayequity plan is on the employer by virtue of section 15 of the Act.

8Any obligation to increase compensation falls on the employer by virtue ofsubsection13(4) of the Act.

31. Sections 15 and 16 of the Act provide for objections to pay equity plans which are posted in the workplace and specify who may lodge objections. These include:

8 where the plan relates to a bargaining unit, the employer or bargaining agent (subsection 16(4)1) ; and

8 where the plan does not relate to a bargaining unit, the employee or group of employeesto whomthe planapplies,otherthan the objector (subsection16(4)2.and 3).

9Where there is an objection, the Tribunal shall hold a hearing under section 17, and in its decision, shall settle the pay equity plan to which the objection relates. The right to a hearing is reserved for either an employer, an employee or group of employees, or a bargaining agent since they are the persons or entities that may file notices of objection under subsection 16(4). It is also clear that a decision by the Tribunalwhichsettlesthe payequityplanimposes rights and obligations on these same persons or entities since they are the "parties" to the plan.

10Under section 22, an employer, employee or group of employees, or the bargaining agent may file acomplaint withthe Commissioncomplainingthattherehasbeenacontraventionofthe Act, the regulations or an order of the Commission.

11Sections 24 and 25 specify who may bring a matter to the Tribunal, in what circumstances, and limit the potential parties.

12In outlining the remedies available to the Tribunal, the Act contemplates that the Tribunal's orders may both confirm rights and impose obligations on employers, employees or groups of employees, and bargaining agents.

13In our view, therefore, when one is attempting to determine the scope of subsection 32(1), it must bedonebyplacingthatprovisionwithinthecontext and framework oftheentirestatute. Subsection 32(1) is consistent with other provisions of the Act inthatitnamesas parties to proceedings before the Tribunal those persons or entities that have been identified as having rights and obligations under the Act and who are in the best position to effect the attainment of the statutory objective. We are of the view, therefore, that subsection 32(1) should be construed so that parties to proceedings before the Tribunal are limited to those persons or entities specified. It is our view that these are the parties which the Legislature contemplated.

14We have been asked, however, to consider whether we have any other authority by which we may add parties. Counsel for SKEW and the Hospital urge us to do so by virtue of subsections 25(1) and 29(2)(b) of the Act. Subsection 25(1) sets out the circumstances under which the Tribunal shall hold a hearing. We are not satisfied that this section enlarges the scope of subsection 32(1).

38. Subsection 29(2)(b) provides as follows:

(2) Without limiting the generality of subsection (1), the Hearings Tribunal, ....

(b) may make rules for the conduct and management ofitsaffairsand forthe practiceand procedure to be observed in matters before it;

39. The questions then are:

14 Doessubsection29(2)(b)suggestthattheTribunalhastheauthoritytoaddparties not . specified in subsection 32(1)?

14 Are the apparently broad powers in subsection 29(2)(b) restricted by the specific provisions of subsection 32(l)?

15In our view, subsection 29(2)(b) does no more than allow the Tribunal to control procedures before it within the context of the legislation. Where the Act is specific as to who the parties before the Tribunal are, we cannot agree that a general provision that the Tribunal may control its own procedures overrides the declaration in subsection 32(1) as to who are the parties in a hearing before the Tribunal.

16This principle is recognized in the decisions cited by Ms Legault and Ms Baker. In the Fishing Vessels case, Mr. JusticeAddy held at page 319 that every tribunal hasthe fundamentalpower tocontrol its own procedure in order to ensure that justice be done. He held, however, that this power is "subject to anylimitations or provisions imposedonitby the law generally, by statute, or by the rulesofthe Court". '

42. In the Newfoundland Telephone Company case, while the Supreme CourtofCanada recognized thata boardortribunalhasanimpliedauthorityto permit intervention, itheld thatinappropriatecasesthere are limits to the scope of the discretion which boards and tribunals can exercise. The Court reviewed the issue of whether the Newfoundland Board of Commissioners of Public Utilities could validly permit the DirectorofInvestigationand Researchto intervene ina hearingbeforethe Board whenhe did not have the required statutory authoritytodoso. The Court held that the Director did not have the necessary statutory authority to intervene with the permission of the Board, and that the Board could not validly permit his intervention. Mr. Justice LeDain held that there are limits to the implied authority of a board or tribunal to exercise its discretion by admitting intervenors. At page 482, he held that:

....Whatever scope may be reasonably assigned to the implied powerordiscretionofthe Board to permit intervention, it cannot have been intended that the Board should have authority to permit intervention by a public officer in his official capacity if the officer has beendeniedthe necessaryauthorityto intervene by his governing statute. The question of whether the officer has the necessary statutory authority, if raised by a party to the proceedings beforethe Board is,ofcourse,acollateralone onwhichthe Boardcannotbe expected to pronounce with finality, but it is one which limits the scope of the Board's discretion to permit intervention. To permit interventionwhereapublic officer is shown to lack the necessary authority to intervene would be to permit him to exceed his authority and thus would be contrary to a fundamental principle of public law. There cannot be an implied power to effect such a result.

17Any discretion to add intervenors through our power to control our procedure must be viewed in lightofthe PayEquityAct,1987 andsubsection32(1)inparticular. We are not convinced that subsection 29(2)(b) alone authorizes the Tribunalto enlarge the list of parties to proceedings before it. If persons or entities other than those specified in subsection 32(1) may be parties to proceedings before the Tribunal, that finding must be made pursuant to other statutory authority. It is in this light that we now proceed to review section 5 of the Statutory Powers Procedure Act, since that legislation applies to the Tribunal.

44. Section 5 of the Statutory Powers Procedure Act provides as follows:

The parties to any proceedings shall be the persons specified as parties by or under the statute under which the proceedings arise or, if not so specified, persons entitled by law to be parties to the proceedings.

45. Unfortunately, the meaning of this provision is not as clear as counsel would suggest. It may mean that anyone specified by the legislation to be a party cannot be denied that status. Furthermore, other

personsnotspecifiedbythelegislation,maybeentitledbylawto be parties. This isthemeaningofsection 5 that both Ms Legault and Ms Baker would urge upon us.

18The other possible meaning for section 5 of the Statutory Powers Procedure Act is as follows. Anyone specified by the legislation to be a party cannot be denied status as a party. Furthermore, only if the legislation does not specify who are to be parties does the issue of "persons entitled by law" to be parties arise. This is the meaning urged upon us by Ms Cornish.

19It is significant that section 5 employs the conjunction "or" before the phrase "if not so specified" ratherthantheconjunction"and". As a result, the plain meaning of section 5 may be that one lookstothe statuteunderwhichproceedings arise to determine if parties are specified and if they are that is the end of the search for parties. One only looks for persons entitled by law to be parties once it has been determined that the statute in question does not specify who the parties are.

20Two decisions were referred to the Tribunal regarding a possible interpretation of section 5 and how it applies to subsection 32(1) of the Pay Equity Act, 1987. In MacCosham Van Lines (Canada) Co. Ltd. v. Minister of Transportation and Communications et al. (1988), 1988 CanLII 4728 (ON HCJ), 66 O.R. (2d) 198 (Div. Ct.) the Divisional Court reviewed section 10b(5)ofthe Public Commercial Vehicles Act, R.S.O. 1980, c. 407 which provides that in an application before the Ontario Highway Transport Board for a rewritten certificate "only the applicant and the Minister are parties to a hearing".

49. Mr. Justice Reid, in reviewing section 10b(5) of thePublic Commercial Vehicles Act held,atpages 211-12 of the decision, as follows:

I accept that there is a genuinely entrenched principle of administrative law that where natural justice requires it, notice and an opportunity to respond must be given to persons who might be prejudiced by acts done under legislative authoritynotwithstanding that the legislation does not require it. Thus, it is said, 'the common law will supply the omission of the legislature':Cooper v. Wandsworth Board of Works (1863), 14 C.B. (ICS.) 180, 143E.R.414. In that way persons may becomepartiesonthebasisthattheyare'entitled by law' and that principle is explicitly recognized in s.5 of the Statutory Powers ProcedureAct. But here there is no legislative omissionoroversight. The legislature has not forgotten to provide for persons to be parties; it has stipulated who shall be parties in the clearest of terms. Thereisthusnobasisuponwhich to apply a principle based on the assumption that the failure to provide for notice to certain persons is an omission.

21Both Ms Legault and Ms Baker submitted that the use of the word "only" to describe who are the parties to the proceedings under section 10b(5) of the Public Commercial Vehicles Act, is absolutely critical. They argued that the Board in the MacCosham case had absolutely no discretion to add intervenorsbecausethelanguageofsection10b(5)wasextremelyrestrictive. They pointed out that section 32(1) does not contain such restrictive language.

51. With respect, we are not of the view that the use of the phrase "the only parties" in a statutory provisionisassignificantascounselsuggest. Section 5 makes no distinction between statutes which simply

specify who are the partiesto proceedings underitand statutessuchas the Public Commercial Vehicles Act which specifies who "the only parties" are.

22ThedecisionofDivisionalCourtin Re Federation of Women Teachers' Associations of Ontario and Ontario Human Rights Commission et al. (1988), 1988 CanLII 4794 (ON HCJ), 67 O.R. (2d), 492 (Div.Ct.) appears to take a different view of section 5 than the MacCosham decision. In that case, the Divisional Court was dealing withanapplicationbythe Federation of Women Teachers'Associations ofOntario (FWTAO)forjudicial reviewofthe decisionofthe Ontario HumanRightsCommissiontorequestthe Ministertoappoint a board ofinquirywithrespecttothecomplaints of two female teachers. The complaints dealt with theprovisions of a certain by-law of the Ontario Teachers' Federation, a statutory body composed of five teachers' affiliate organizations. FWTAO is one ofthe affiliates. One of the applicant's grounds for judicial review wasthatitwasdeniedpartystatus inthe processingofthe complaintsunderthe Human Rights Code, S.O. 1981, c.53.

23The Divisional Court noted that the board of inquiry granted FWTAO intervenor status with all the rights of a party to make its case before the board. The Court held that regardless of whether FWTAO was granted that status pursuant tosection38(2)(d)ofthe Code whichspecifiedpartiesbeforethe board, or section 5 of the Statutory Powers Procedure Act, its rights of appeal under section 41 of the Code were preserved.

24By simply stating, without any further comment, that FWTAO was given intervenor status with full rights of a party by the board ofinquiry, itmaybe thatthe Divisional Court was taking the view of section 5 urged upon us by Ms Legault and Ms Baker. It is difficult to determine what view the Divisional Court was taking of section 5 since the meaning to be given to that clause was not before it to be decided. Therefore this decision is not helpful to our deliberations.

25In our view, if theMacCosham decisionisthe law in Ontario then we need notlookanyfurtherthan section 32(1) of the Pay Equity Act, 1987. Since the Act specifies who the parties before the Tribunal are, we need not be concerned with whether there are any persons outside of those specified in section 32(1) who are entitled by law to be parties in proceedings before us. On the basis of this interpretation then, sinceSKEW isnotinanyofthe categoriesprovidedforinsection32(1), itcannot be a partyto these proceedings.

26If, on the other hand, the principles with respect to section 5 of the Statutory Powers Procedure Act enunciated in the MacCosham decision are not the law in Ontario then we must endeavour to determine whether SKEW is entitled by law to be a party to these proceedings.

2. INTERVENTION AS A PARTY

SKEW's Position

57. Ms Legault submits that in order to determine whether SKEW should be added as a party, three factors must be considered. Firstly, does SKEW have an interest in the subject matter of the case? Secondly, does SKEW have the potentialto beadverselyaffectedby the outcome of this particular case?

Thirdly, is SKEW in a position to provide assistance and to ensure that all the relevant facts are put before the Tribunal?

2 Ms Legault submitted that the Aiken Plan (the "Plan") is the job evaluation system provided by SKEW and that the essence of the complaint by ONA is an attack on the gender neutrality of that Plan. Thereforea major portion of the dispute is betweenONAand SKEW ratherthanONAand the Hospital.

3 Ms Legault argued that SKEW has the potential of being adversely affected by the outcome of this particular case in that an adverse decision by the Tribunal would have a substantial impact on SKEW in terms of revenues, livelihood, reputation and its professional activities in general. Counsel indicated that a decision could also have adirectimpactonSKEW'scontractualrelationshipwith the Hospital. It might open the possibility that SKEW could be sued by the Hospital or be forced to re-negotiate its contract.

4 Counsel also submitted that an adverse decision by the Tribunal would have an impact on SKEW's relationswiththe Ontario HospitalAssociation, whichoriginallyheardthe bidsfromthe various consultants and selected the Aiken Plan for use in the hospitals of Ontario.

5 Ms Legault argued that SKEW can be of assistance to the Tribunal in that it can ensure that the Tribunal fully understands the issues. She contends that this factor is especially relevant where the issue relates to a complex and specialized question, such as the gender-neutrality of a job evaluation system. Counsel submitted that SKEW was not seeking status as a friend of the Tribunal in that it has an interest in the matter before the Tribunal.

6 In Ms Legault's submission, it is not an absolute rule that an applicant for intervenor status must show that it has a directinterestintheproceedings. She submitted that it is enough if the decision in question will directly affect a person's legal rights or in his or her pocket book; if one has a legitimate and substantial interest;ifthereisacommercialinterestora probable loss in livelihood. Shealsoarguedthatareasonable possibilitythataninterestmaybeaffected is enough to obtain party status. She submitted thatoneshould normally be a party to proceedings if one's rights could be directly affected by the acts of a court or administrative tribunal.

7 Finally, Ms Legault submitted that if SKEW was added as a party intervenor, it could ensure that the issues arising out of the Aiken Plan would be dealt with and that further complaints by ONA against other hospitals could be avoided with respect to those issues.

8 In making her argument, Ms Legault referred to the following case law: International Minerals and Chemical Corporation and Potash Company of America and DuVal Potash and Sulphur Company and The Commissioner of Patents, 1964 CanLII 44 (SCC), [1965] S.C.R. 3 (S.C.C.); Re Starr and Township of Puslinch (1976), 12

O.R. (2d) 40 (Div.Ct.); Re Multi-Malls Inc. et al. and Minister of Transportation and Communications et al. (1975), 1975 CanLII 619 (ON HCJ), 7 O.R. (2d) 717 (Div.Ct.); Re Damien and the Ontario Human Rights Commission (1976), 1976 CanLII 855 (ON HCJ), 12 O.R. (2d) 262 (Div.Ct.); Johnson et al. v. Corporation of Town of Milton (No. 1) (1981), 1981 CanLII 1736 (ON HCJ), 34 O.R. (2d) 289 (Div.Ct.); Friction Division Products v. E.I. DuPont de Nemours and Co. Inc. et al. (1985), 1985 CanLII 2244 (ON HCJ), 51 O.R. (2d) 244 (Div.Ct.); Fishing Vessel Owners' Association of British Columbia et.al. v. Attorney General of Canada et al., supra; and The Canadian Transit Company and The Public Service Staff Relations Board, Treasury Board, Carlo Bargotto, Ron Lauzon, and Larry Macko, unreported decision of the Federal Court of Appeal dated June 13, 1989.

The Hospital's Position

1 Ms Baker submitted thatSKEWoughttobeaddedasapartyon the basis that, as the marketer of the Plan, it has a legitimate and vital interest in the outcome of this hearing. She submitted that SKEW is an organization whose plan is being directly attacked by ONA.

2 Counsel submitted that SKEW stands to be potentially aggrieved if a decision regarding the gender neutrality of the Plan is made in favour of ONA. Therefore, SKEW has a personal, commercial interest intheoutcomeofthisdecision. SKEW is facing potentially serious commercial and business consequences and,byimplication,thedecision,ifmadeintheformrequestedbyONA, wouldchallengetheircompetence and professionalism. Ms Baker argued that SKEW is not a mere "busy body", nor is it trying to raise new issues or create a new cause of action.

3 Ms Baker-adopted SKEW's submissions regarding the assistance it could provide to the Tribunal.

4 Ms Baker referred the Tribunal to the following decisions: Gryd Construction Inc., The ManufacturersLifeInsuranceCompanyandLocal562,Wood,Fire,andMetalLathers International Union, [1975] O.L.R.B. Rep. March, 230; R. v. Kopyto, unreported decision of the Ontario Court of Appealdated February12, 1987; Re Association of Parents for Fairness in Education, Grand Falls District 50 Branch and Société Des Acadiens Due Nouveau-Brunswick Inc. et al. (1984), 1984 CanLII 2954 (NB CA), 8 D.L.R. (4th) 238; Batten and Newfoundland Association of PublicEmployeesv.BaySt.George Community College (1986), Nfld. - P.E.I.R. 59 (Nfld. Sup. Ct., Trial Division); Re Ontario Energy Board (1985), 1985 CanLII 2086 (ON HCJ), 51 O.R. (2d) 333 (Div.Ct.); Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee Inc. et al. (1985), 1985 CanLII 1957 (ON HCJ), 51 O.R. (2d) 23 (Div.Ct.); and Energy Probe et al., Intervenors (1989), 1989 CanLII 258 (ON CA), 68 O.R. (2d) 449 (O.C.A.).

ONA's Position

1 Ms Cornish submitted that its complaint is not an inquiry into the nature of comparison systems or the Aiken Plan generally. ONA's position is that its criticisms of the Plan relate to the comparison system proposed by the employer and whether it is gender neutral when applied to this particular workplace.

2 Secondly, Ms Cornish submitted that SKEW has only a commercial and incidental interest and that is not sufficient in this case because that interest is not protected by the Pay Equity Act, 1987.

3 Ms Cornish also dealt with the issue of whether SKEW could be of assistance to the Tribunal. Counselsubmittedthatthe employeroughttobeable todefend whetheror notthe systemisgenderneutral. In her view, it is an unacceptable argument to state that SKEW ought to be an independent party because it knows more about the Aiken Plan than does Women's College Hospital.

72. In order to determine whether SKEW ought to be added as a party to these proceedings, the Tribunal proposes to consider the following:

(i) What is the nature of proceedings before the Tribunal?

(ii) What are the issues in this particular case?

Decision of the Tribunal

(iii) What is the nature and scope of the proposed intervenor's concern in these proceedings?

(iv) Is the proposed intervenor requesting status as a friend of the Tribunal? Will the intervenorbringto the proceeding anexpertiseconcerningthe policy, factualor legal issues in dispute which is different than that of the parties?

(v) Are there other mechanisms for dealing with the intervenor's concerns such as the filingofindependent complaints, consolidation ofhearings,or appearingasa witness for one of the parties?

(vi) Whatprejudicewilltherebetotheparties if the intervenorispermittedtoparticipate in the proceedings as a party?

a) Will the intervention widen the issues in dispute? b) Will the intervention delay an expeditious determination of the dispute? c) Will the intervention unreasonably add to the cost of the proceedings for the parties?

What is the nature of proceedings before the Tribunal?

1 Many of the cases referred to the Tribunal involve broad public interestissues,regulatorytasks,or constitutional questions. As Robert Macaulay points out in his text Practice and Procedure Before Administrative Tribunals, the public interest cases involve, for example, the price of natural gas, the location of highways, pipelines, transmission towers, or the granting of radio licences. In most public interest cases, the issues arewideand far-reachingand compelthe adjudicatortoconsider the interests of a community or the public at large.

2 In the decision of the Court of Appeal in Energy Probe et al. v. Attorney General of Canada; Ontario Hydro et al., Intervenors, the issue before the court was whether various provisions of the Nuclear Liability Act, R.S.C. 1985, C.N-28 were unconstitutional on the grounds that they were ultra vires the Parliament of Canadaaslegislationwithrespectto propertyand civilrightsand thatthey violated various provisions of the Charter of Rights and Freedoms.

75. In Canadian Labour Congress v. Bhindi et al. (1985), 1985 CanLII 384 (BC CA), 2 C.P.C.(2d) 28(B.C.C.A.), the applicant Canadian Labour Congress was allowed to intervene as an added party with respect to the constitutional issues raised. Intervenor status was granted for a number of reasons including the fact that the case

involvedamatterofnationalconcern in thefieldoflabourlaw. As well, the Court held that in cases dealing with Charter issues, it ought to hear from all segments of the community.

3 These cases point out that the more a decision of a board or tribunal involves public policy or constitutional matters the less important the potential intervenor's personal interest will be and the more relevant their ability to provide the board or tribunal with helpful information. Conversely, the more a determination lies within the realm of a private dispute, the more directly connected to the actual lis between the parties the potential intervenor's interest ought to be.

4 A review of the Pay Equity Act, 1987 reveals that the disputes which the Tribunal will be consideringaremoreinthe natureof lisinterpartes. The statute requires that the Tribunal adjudicate upon matters arising fromthe preparationand negotiationofa payequityplan. It also requires, in certain cases, that we determine whether the Act has been breached by one of the parties identified in the Act as a participant in the pay equity process. Furthermore, the remedies provided under section 25(2) are such thattheyinvolvearesolutionofparticulardisputesbetweenparticular parties. This being the case, we are of the view that the level of intervention permitted would not be substantial.

What are the issues in this particular case?

1 The definition of the issues before us are in dispute, as outlined earlier. ONA submits that the focus of its complaint regardingthe genderneutralityofthe proposals put forward by the Hospital will be on the particular workplace in question. SKEW maintains that the Aiken Plan, rather than its application in this workplace,, has been directly placed in issue by ONA.

2 It is significant that the term "gender neutral comparison system" is employed in section 14 of theAct andnotthephrase"jobevaluationplan". Subsection 14(1) obligates the employer and the bargaining agent to negotiate a"genderneutralcomparisonsystem". The focus of subsection 14(2)(a) is not on any specific job evaluation plan but in fact on a gender neutral comparison system which must be agreed to by the parties.

3 The developers, suppliers, or marketers of job evaluation plans are neither mentioned nor in any way given any status under section 14 regarding the negotiations that must take place; although the reality appears to be that job evaluation plans may be utilized as the basis for bargaining proposals under this section. Nevertheless, the obligation to agree upon a gender neutral comparison system in a unionized workplaceisontheemployerandthebargainingagent. The developer orsupplierofajobevaluationplan is incidental to the process outlined in subsection 14(2) of the Act.

81. In our view, therefore, the issue before the Tribunal in this case is the gender neutrality of the proposals put forward by the Hospitalregardingthe comparisonsystemto be used to evaluate the jobs in thatparticular workplace. The issue is not the gender neutrality of the Aiken Plan. Weareguidedbythe Ruling of the Tribunal in the Haldimand-Norfolk case dated June 26, 1989. In that case, William M. Mercer Ltd. requested intervenor status in the proceedings. At paragraphs 3 and 4 the Tribunal decided as follows:

3 The only relevant issues before the panel aretheissueofgoodfaithbargaining and the issue of the 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 to the gender neutral comparison system and the pay equity plan that these parties are required to negotiate under the Pay Equity Act.

3 We have heard that the Respondent intends to lead evidence with respect to the Mercer plan as it has been tabled and negotiated in this case; that evidence is relevant to the determinationofthe issuesbefore us. Similarly, it is for the Applicant to leadevidence only on those aspects ofMercer or anyotherplanorcomparisonsystem that are relevant to the issues before us. In terms ofthe evidencethathasalreadybeenled,itwillbe for the Tribunal to decide what is relevant to the determination of this case.

What is the nature and scope of the proposed intervenor's concern in these proceedings?

1 SKEW's position is that it has an interest in the subject matter of the proceedings, and that the Tribunal's decision may have an adverse impact on SKEW in a commercial sense; it may suffer a loss in reputation, revenues and livelihood.

2 In argument regarding the nature of the interest necessary to justify intervention, the Tribunal was referred to several decisions of the Divisional Court. In Re Starr and the Township of Puslinch, purchasersofland designated asagravelpit underanofficialplansought intervenorstatus inanapplication for judicial review of the official plan of the Township of Puslinch. Grange, J. held that the applicants for intervenor status had a considerable commercial interest in the result of the judicial review application, because if the application was successful they would have been faced with the problem of a rezoning application, an amendment to the official plan and all of the consequent difficulties that might arise therefrom.

84. Grange, J. held that the question before him involved the determination of whether Rule 136 of the Rules of Civil Procedure contemplated or permitted the addition of parties to the proceedings in the circumstances of this case. At page 43 of the decision he held that:

The determination of the question depends upon the Court's interpretation of the Rule. It is clear that upon one interpretation no person who is not directly concerned in the issue to be litigatedcanbe added. Itisequally clearthatunderanotherinterpretationanyperson whose rights are directly and substantially affected by the result of the litigation is a person 'whose presence is necessary to enable the court effectually and completely to adjudicate upon the questions involved in the action'.

85. After reviewing the authorities Mr. Justice Grange held that there was "no absolute rule that for a party to be added he must have a direct interestintheveryissuetobedetermined". He cited the decision of Lord Denning, M.R., in Gurtner v. Circuit et al., [1968] 2 Q.B. 587, whichstood forthe proposition that it was enough for a person to be added asanintervenorif"the determinationof [the] dispute [would] directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill".

Because the intervenors would be affected by the determination of the judicial review, Grange, J. allowed them to be added as parties.

3 It is clear that the decision in Re Starr was based ontheCourt'sinterpretationofRule136. Clearly, the Courtdeterminedthatbecausethe rightsoftheproposedintervenorswouldbe directlyand substantially affected by the result of the litigation, they were persons "whose presence [was] necessary in order to enable the courteffectuallyand completelyto adjudicateuponthe questions involvedintheaction". Inother words, without the presenceofthe proposedintervenors,theCourtcould notmakea proper determination of the issues in dispute.

4 In deciding the issue before the Tribunal, the provisions of former Rule 136 are inapplicable. While the DivisionalCourtwasrequiredto satisfyitselfthattheinterventionwasjustifiedunderRule 136, wemust apply other considerations more closely related to the statutory framework under which we operate. Nevertheless, even if we were to apply the reasoning underlying the decision in Re Starr, we are not convinced that that would afford SKEW the status it seeks. The question under the Re Starr reasoning is whether SKEW's presence is necessary for the Tribunal to effectually and completely adjudicate upon the question in dispute because its rights are directly and substantially affected by the result of the litigation before the Tribunal.

5 What ONA has requested of. the Tribunal is "a declaration that the comparison system adopted and proposed bythe Respondent Employerisgenderbiasedand unlawfulinthe circumstancesofthis caseand cannot be the subject of negotiations or agreement". Under the Pay Equity Act, 1987 it is employers, unions and employees who must comply with its terms. Therefore, where a union alleges that an employer has breached the Act by proposing a comparison system which is gender biased, it is the employer who mustreplyto the allegationand whose presence is necessary for the Tribunal toadjudicateuponthe issue. In its Response it can adduce whatever relevant evidence it wishes to meet the allegation, including evidencefromthe developeror marketerofthe job evaluationplanuponwhichthe employer'scomparison system is founded.

6 In Re Multi-Malls Inc. et al. and Minister of Transportation and Communications et al., the applicants brought an application for judicial review of certain land use decisions madebythe Minister of Transportation and Communications which were adverse to them. They had planned to build a shopping centre adjacent to the Town of Tillsonburg. The Town wished to be added as a party to the judicial review application since it had a scheme for urban renewal which was inconsistent with the building of a large shopping centre on its immediate borders. The Divisional Court held that the Town of Tillsonburg and its ratepayers had a "vitalandlegitimate"interestinthematterindisputeanditwasthereforeaddedas a party to the judicial review proceedings.

7 The issues in this case appear to be much wider than a classic lis inter partes. Clearly, the issue was not restricted to a consideration of whether the applicants would be able to build a shopping centre. Rather, the case involved the actions of the Minister, the validity of the official plan in question, and the effect of the applicants' proposals on the scheme for urban renewal which the Town of Tillsonburg had developed. The Court recognized this at page 719 of its decision when it held that:

This matterseems to raisemattersofsome importanceinvolvingministerialpowers insuch matters and as to planning jurisdiction.

It is not surprising therefore, that the Court wished to have the views of the Town of Tillsonburg heard at the judicial review.

1 The case before us does not involve a matter of public interest. Because of the fundamental difference in the nature of the inquiry in the Multi-Mall case, the principles enunciated there are not determinative of the issues before us.

2 In Re Damien and Ontario Human Rights Commission the Divisional Court held at page 263 that "a party whoserightswillbe directlyaffectedbythe acts ofaCourtor administrative bodyshould normally beapartytotheproceedingscontemplated". In this case, the issue was whether or not the Ontario Human Rights Commission should receive and deal with a complaint that the applicant had been dismissed from his employment at the Ontario Racing Commission because he was a homosexual. The Human Rights Commission held that it did not have the jurisdiction to investigate the complaint.

93. Mr. Damien made an application to Divisional Court for judicial review. The Court allowed the applicant's employer to intervene in the matter. However, the grounds upon whichtheCourtallowedthe intervention are interesting. At page 264 of his decision, Osler, J. held that the connection of the Racing Commission with the issue that may be before the Ontario Human Rights Commission:

....issufficientlydirectthatthe RacingCommissionshould begiventhe opportunitytoargue the question of jurisdiction itself. If that were not so, and if we were to decide that the Human Rights Commission is obligated to investigate this complaint and does have jurisdiction and an investigation were to proceed, the Racing Commission would at that stage be foreclosed of any right to argue the jurisdictional question. We feel that this cannot be right...

3 Clearly there was a direct link between what the Ontario Human Rights Commission was to decide and the employer, the Ontario Racing Commission. If the Human Rights Commission decided that the applicant wasfiredforimproperreasons,the RacingCommissionwould be directlyaffectedinthatit might be required to re-instate the applicant. Since the Human Rights Commission might name the employer in the remedy, it was imperative that the employer be allowed to argue whether or not the Human Rights Commission even had the jurisdiction to consider the complaint.

4 In our view, there is no similar direct affect on SKEW in these proceedings. Any remedy related to the comparisonsystemproposed by the employer will be directed to the employer and not to SKEW.

5 In Friction Division Products, Inc. v. E.I. DuPont de Nemours & Co. Inc. et al., Barr J. held at page 246 of his decision that:

The present application has beenbrought by Friction Division Products, Inc., the plaintiff intheDelawarelitigation. The respondents are E. I. DuPont, the two Canadian companies

and their executives. At the beginning of the hearing an application was made by DuPont Canada Inc. for leave to intervene as an added party. The evidence showed that the Canadian company has legitimate commercial interests which may be adversely affected by my decision. I accordingly granted the application under rule 13.01(1).

1 Unfortunately, Barr, J. did not discuss what the "legitimate commercial interests" were, nor did he explain why those commercial interests were sufficient to afford intervention status.

2 When one reviews the facts in this case, however, one notes that what was at stake was not so much a commercial interest but the legal right of DuPont Canada Inc. to purchase Kelvar Pulp and Fibre from

E. I. DuPont de Nemours & Co. Inc. and re-sell it to companies located in Canada. In other words, it is a question of DuPont Canada's right to carry on a part of its business. As Barr, J. stated at page 246:

It appears that DuPont Canada purchased Kelvar Pulp and Fibre from E.I. DuPont and resold it to a number of Canadian users including the Canadian respondents. The goods wereordered, delivered,and paid forinCanada. These sales were entirelybetweenthree Canadian companies - DuPont Canada and the two Canadian respondents.

1 The litigation involved a patent action arising in the United States between Friction Division Products and E.I. DuPont over the patent to Kelvar Pulp and Fibre. It appeared that if Friction Division Products wassuccessfulinthe patent action, E.I.DuPontwouldnolongerbeable to sellthe productsto itsCanadian subsidiary DuPont Canada. DuPont Canada in turn, would not be able to resell the products to its Canadian customers. The Court decided that the effect of a decision in favour of Friction Divisions Products might directly affect DuPont Canada's legal rights to carry on its pulp and fibre business.

2 In the International Minerals case, the litigation again concerned a patent action. As Cartwright,

J. held at page 11 of this decision:

The order for which DuVal is asking in the action is that it be declared that it is entitled to the issue of a patent which, if granted, will confer upon it the exclusive right of using the flotation process which PCA has been using for years and proposes to use in the development of its deposits of potash ores in Saskatchewan. The order sought would, in my opinion, affect the legal right of PCA to continue to carry on its business. [emphasis added]

1 Again, the issue in the case was the legal right of a company to carry on its business enterprise should there be an adverse decision in an action to which it was not made a party.

2 In the Fishing Vessels case, the Federal Court of Appeal dealt with the issue of whether gill net fishermen ought to be allowed to intervene inanactionbetweenanassociationofseinerfishermenand the FederalDepartmentofFisheries. The Department had allowed the gill net fishermen to fish for salmon two dayslongerthantheseiners during the approved fishingseason. The seiners obtained an injunction against the Department prohibiting it from implementing the fishing plan described above.

103. Addy, J. found that the gill net fishermen had "a real and inviolable right to fish during the season and in accordance with the annual fishing plan of the Department of Fisheries as long as they comply with its rules and regulations". Addy, J. also held that "the exercise of that right involves a considerable financial returnduringthelimitedfishingseason. Conversely, the loss of two days' fishing can involve a considerable financial loss". He held that there was "no greater pecuniaryinterestor right than an interest in one's own livelihood". At page 316, he also held that:

I do not subscribe to the view that the. interest of the person seeking to be joined has to belimitedto a proprietaryright intangible property. Aprobable lossordiminutionofone's livelihood constitutes a real, existing, enforceable legal right and interest.

3 While this decision appears to stand for the proposition that if a decision in a proceeding in which apersonisnotapartymayaffectthatperson'slivelihood then that person has an interest which willpermit him or her to obtain intervenor status in the proceeding. In our view, this decision does not go that far. It was clear that the Federal Court was concerned about not merely the reduction in revenues or the diminution of livelihood, but the right of the gill net fishermen to carry on their business. Inotherwords,it was not simply a matter of determining that the gill net fishermen might suffer some financial loss if a permanent injunction against the Department would be awarded. Rather, the Court was concerned about the right of the gill net fishermen to carry on fishing at all. At page 319 of the decision, Addy, J. held that the gill net fishermen ought to be allowed to intervene in the appeal of the interlocutoryinjunctionbrought by the Department ofFisheries. He based his decision, among other reasons, on "the fundamental right of every citizen to derive his livelihood from the natural resources of our country, subject to whatever reasonable controls may be imposed for the good of all ...."

4 In our view, therefore, it was the possible curtailment of the right to fish according to the Department'sfishingplanthatwasdeterminative ofthe decision to allow them tointervene as a partyinthe appeal rather than a simple loss of revenues.

106. It appears that in the Re Starr decision weight was also placed on the fact that the businessofthe applicantintervenorsmightbejeopardizedbyanadversedecisionintheaction. At page 46 of his decision, Grange, J. held that:

...I do believe that in this instance, where the very enterprise of the applicants will be in danger of prohibition and where both applicants appear to have acted in reliance on the official plan that is now attacked, they should be permitted to intervene.

5 In our view, there is no evidence that SKEW's enterprisewillbe "in danger of prohibition" by any decision of the Tribunal. Whileitistruethatifthe Tribunal finds that the comparison system proposed by Women's College Hospitalisgenderbiased,thenwemayorderthatit be amended in some manner. This order,however,willbedirectedtoWomen'sCollegeHospitalandnottoSKEW. In no way will SKEW's legal right to develop and market a job evaluation plan be curtailed.

108. In the Canadian Transit Company case, the owner of the Ambassador Bridge, was statutorily liable under the Customs Act, R.S.C. 1985, (2nd SUPP.), c.1, to pay the expenses of any repair or

construction to the bridge if it was found not to meet the requirements of Part IV of the Canada Labour Code, R.S.C. 1970, c. L-1.

109. In that case, the Federal Court of Appeal held that the owner of the bridge had a very real legal interest in the outcome of the proceedings. MacGuigan, J. held, at page 10 of his decision, that:

In my view this real interest of the applicant was in a sufficiently direct relationship to the subject matter before the Board that the applicant was entitledto noticeofthe hearing on December 21 and an adequate opportunity to present its case.

6 Can it be said that SKEW is subject to similar liability if the Tribunal makes an order against Women's College Hospital regarding its proposals for a comparison system? We think not. As noted earlier, it is not SKEW which must meet the requirements of the Act; it is the Hospital. If there is any liabilityforSKEW atall in these circumstances it is not as a result of the Act but rather, as Ms Legault has pointed out, as a result of the contractual relationship between the Hospital and SKEW.

7 In our view, this is a consideration which the Tribunal ought not to take into account in deciding whether to permit SKEW to intervene in these proceedings. We have no knowledge of any of the contractual obligations which SKEW may have with either Women's College Hospital or the Ontario HospitalAssociation. Nor do we believe that we ought to speculate as to what those obligations might be.

8 Secondly, SKEW's contractual obligations to the Hospital or to the Ontario Hospital Association are simply not in issue in these proceedings. We are charged with responsibility of scrutinizing whether the Hospitaland ONAhave mettheir obligations under the Pay Equity Act, 1987 not with affording SKEW theopportunityofdefendingitselfsoas to avoid alawsuitinthefuture. If there is a lawsuit that will be dealt with in another forum.

113. Mr. Justice Marceau dealt with this issue in his decision in the Canadian Transit Company case. While the Federal Court is bound by section 28 of the Federal Court Act, R.S.C. 1970 (2nd SUPP.), c.10, which requires a direct effect on the proposed intervenor before intervention will be permitted, nevertheless his analysis is extremely helpful. While he concurred with the decision of MacGuigan, J.A. that the owner of the bridge ought to have been given an opportunity to be heard, he held at page 2 of his decision that:

It is clear to me that mere interest in the eventual outcome of a proceeding before a tribunal, whetherfinancialor otherwise,isnot in itself sufficient to give an individual aright to participate therein. The demandsofnaturaljusticeand procedural fairness certainly do not require so much and in any event it would be impossible in practice to go that far. In my judgment, to be among the interested parties that a tribunal ought to involve in a proceeding before it to satisfy the requirements of the audi alteram partem principle,an individualmustbe directlyand necessarilyaffectedbythedecisionto bemade.His interest must not be merely indirect or contingent, as it is when the decision may reach him only through an intermediate conduit alien to the preoccupation of the tribunal, such as a contractual relationship with one of the, parties immediately involved.

9 In Crown Trust Co. et al. v. Rosenberg et al. (1986), 22 C.P.C. (2d) 115 (H.C.J.) Clarkson GordonInc.,the InterimReceiverand Manager,brought amotiontoapprovethesale ofcertainproperties. There were many properties for sale, and many offers were received and considered by the Receiver. Twenty-six offers were recommended by the Receiver for approval by the Court.

10 An offer by Larco Enterprises Ltd. was received by the Receiver but was not recommended for approval. Upon the return of the, Receiver's motion, Larco brought a motion to be added as an intervenor inthe action and allowing it access to the Receiver's report as to the proposedpurchaseofthe properties set out.

116. In dismissing Larco's application Anderson, J. first reviewed whether the applicant had an interest in the subject matter of the proceeding. At page 121 of his decision Anderson, J. held that:

The motionbrought by Clarkson to approve the sales is one upon which the fundamental question for consideration is whetherthatapprovalisin the best interests of the parties to the action as being the approval of sales which will be most beneficial to them. In that fundamental question, Larco has no interest at all. Its only interest is in seeking to have its offeraccepted with whatever advantageswillaccrue to itasa result.Thatinterestispurely incidental and collateral to the central issue in the substantive motion and, in my view, would not justify our exercise of the discretion given by the Rule.

117. Anderson, J. then reviewed the issueofwhetherLarcowouldbeadverselyaffectedbyajudgment in the proceeding. He held at page 121 that:

....In my view, Larco, will not be adversely affected in respect of any legal or proprietary right. It has no such right to be adversely affected. The most it will lose as a result of an order approving the sales as recommended, thereby excluding it, is a potential economic advantage only.

11 To borrow the analysis of Anderson, J., in our view that the fundamental issue to be decided is whether or not the comparison system proposed by Women's College Hospital is gender neutral in the circumstancesofthiscase. We do not believe that SKEW has an interest in that issue. The relief requested by SKEW in its response makes it clear that it wishes to have its job evaluation plan declared gender neutral. This is a different question than that which the Tribunal must decide. SKEW's interest in this regard is clearly incidental or collateral to the main issue in these proceedings.

12 Secondly, any decision by the Tribunalregarding the Hospital's proposed comparison system will affect the Hospital since it is the Hospital which must respond to any order by the Tribunal. The Pay Equity Act, 1987 makes no provision for an order directed at those persons or advisors who assist employers or bargaining agents to develop comparison systems.

13 Counsel for ONA referred the Tribunal to the decision of the Ontario Labour Relations Board in

The Toronto Building and Construction Trades Counsel v. Napev Construction Limited and Vepan

Leaseholds Limited [1976] O.L.R.B. Rep. March 109. In this case the Board considered whether a commercial and incidental interest entitled a union to intervene in a proceeding under section 1(4) of the Labour Relations Act R.S.O. 1980 c. 228. The Board cited the decision in Moser v. Marsden (1892), 1 Ch. 487 (C.A.) which held that a person who would only be commercially and incidentally injured by a judgment is not entitled to be made a party to an action on the grounds of such prospective injury.

121. The Board also cited the decision of Master Barlow in Westgate v. Sudbury Rand Mines Ltd., [1940] O.W.N. 258 which held as follows:

The law is neatly stated in Holmstead, 5th ed, p.656 as follows: A person who would be commercially and incidentally, but not legally and directly, injured by a judgment being obtained against the defendant in an action, is not entitled, on the ground of such prospective injury, to be made a party to the action.

122. In the Haldimand-Norfolk . case the Tribunal refused Mercer's request for intervenor status. In its Ruling, dated June 26, 1989 it held that:

123. In light of the issue being whether the employerinthis casehasnegotiatedin good faith and endeavouredto agreeupona genderneutralcomparisonsystemand a payequityplan for these bargaining units, we find that William M. Mercer has only a commercial and incidental interest in the proceedings before us. Accordingly, we do not grant intervenor or party status to William M. Mercer Ltd.

2 In conclusion, as in the Haldimand-Norfolk decision, we find that SKEW's interest is commercial in nature and incidental to the main issue before the Tribunal.

Is the proposed intervenor requesting status as a friend of the Tribunal? Will the intervenor bring to the proceeding an expertise concerning the policy, factual or legal issues in dispute which is different than that of the parties?

1 We note Ms Legault's argument that SKEW is not seeking standing as an amicus curiae. We are of the view that such standing is not appropriate in this case.

2 There is no doubt that hearing from the entity which created or markets the job evaluation plan upon which the Hospital's proposal regarding a comparison system is based would be helpful to the Tribunal. Nevertheless,the questionremains as to whetherSKEW isentitledto partystatus in these proceedings on the basis of its expertise and the assistance it could render to the Tribunal. We would expect that the assistancewithregardtotheHospital'sproposalswould comethroughevidenceledbytheHospital. How that evidence is provided to the Tribunal, whether through calling SKEW as a witness or otherwise, is clearly a matter for the Hospital to decide.

126. We turn now to the issue of whether SKEW's participation at the hearing would ensure that further complaints by ONA against other hospitals could be avoided. In our view, there is no reason to believe thata decisioninthis case regardingthe Hospital'sproposals fora comparisonsystemwould applyto other

hospitals to which SKEW provides advice. As we have noted earlier, the issue of gender neutrality of a comparison system must be viewed within the context of a particular workplace. One cannot simply employthe reasons and decisionofthis panelrelatingto Women'sCollege Hospital and apply it to another hospital without ensuring that those reasons are applicable to that hospital.

3 This principle was recognized by the Ontario Court of Appeal in its decision in Re Schofield and Minister of Consumer and Commercial Relations (1980), 1980 CanLII 1726 (ON CA), 112 D.L.R. (3d) 132; 28 O.R. (2d) 764 (O.A.C.). In that case a solicitor applied for an order permitting him tointerveneonbehalfof two clients in an appeal in which neither he nor the clients were directly involved.

4 The basis of the solicitor's application was that in one case he represented a client who had a similar case pending before the Supreme Court of Ontario. The solicitor submitted that the outcome of that case would be determined by the outcome of the appeal in the Schofield case. He also represented a client whose litigation had been settled with reference to the outcome of the appeal in the Schofield case. Madam Justice Wilson rejected intervenor status on that basis. At pages 134-135 she held as follows:

Is it appropriate for this Court to determine whether or not the decision in Schofield will governClient A's case and then, on the basis ofanaffirmative answerto thatquestion, find thatClient Aisa person"interested"inthis appeal? I do not think so. Ithink thatis'putting the cart before the horse'. It is surely for the Court hearing Client A's case to decide whether or not Schofield is applicable to the facts of that case. This is fundamental to the operation of the doctrine of precedent.

Are there other mechanisms for dealing with the intervenor's concerns such as the filing of independent complaints, consolidation of hearings, or appearing as a witness for one of the parties?

129. Filing of independent complaints and the consolidation of hearings are not applicable in this case. The possibilityofSKEW appearingasa witness in these proceedings exists; however, no clear indication that this option would be taken was given at the hearing. Therefore, this factor is not helpful in our deliberations.

What prejudice will there be to the parties if the intervenor is permitted to participate in the proceedings as a party?

1 The first issue is whether the intervention will widen the issues in dispute. If SKEW is permitted to participate as a party in these proceedings its participation would be limited to the issue of the gender neutralityoftheHospital'sproposals. Since the Tribunal has the authority to control the proceedings before it, it can ensure that the parties will not venture beyond what is in issue. Therefore, this factor, while important, is not determinative in this case.

2 The second aspect of this factor is whether the intervention will delay an expeditious determination of the dispute. Ms Legault submitted that if SKEW was allowed to participate, the Hospital's case would in fact be shorter. Since SKEW would proceed to lead expert evidence to meet the various allegations madebyONA, the Hospital would not have to call much evidence onthe technicalitiesofthe AikenPlan.

3 There is no doubt that the addition of SKEW would lengthen the proceedings. There is the possibility that ONA's witnesses, who would be testifying as to the gender neutrality of the Hospital's proposedcomparisonsystem,wouldbesubjecttotwocross-examinations. If any witnesses are tendered asexperts,thereisthepossibilitythattwocounselwouldcross-examineontheircredentials. Furthermore, SKEW would have the opportunity of cross-examining the Hospital's witnesses as well.

4 Ms Legault has indicated that SKEW would in all likelihood call one or two expert witnesses. Thereis,then,thepossibilityoftwosetsofcross-examinationsofthosewitnesses. By adding another party we would be adding another final argument. Finally, any objections raised by any participant will simply take longer to resolve.

5 In our view, the possibility for lengthening the proceedings and therefore delaying a final determinationofthedisputeissignificant. While delay, in and of itself, is not determinative of the issue here, nevertheless, it is a factor to be taken into account.

6 A separate issue raised by Ms Cornish was that by permitting the intervention of SKEW in this case, ONA would be subjected to a double defence. In other words, ONAwould be faced with two counsel leadingevidenceonthesameissue. Furthermore, asnotedearlier,theHospital'sApplicationwillbeheard together withONA'sApplication. The allegations the Hospital makes against ONA in its Application and the relief sought are similar to thatwhichis found in its Response to ONA's Application. If SKEW were permitted toparticipateintheseproceedings as a party, itsevidencewould notbe limited solely to meeting the allegations made by ONA in its Application, but would of necessity go towards assisting the Hospital with its own case. To allow a consultant to either defend or prosecute a complaint as a full party to the proceedings would be prejudicial to ONA in this case.

7 Another factor to be considered is whether the interventionwouldunreasonablyaddtothecostof the proceedings for the parties. This issue was not argued in this case and therefore it is not a factor which we take into account.

CONCLUSION

1 In considering the various factors and criteria we have concluded as follows.

2 In our view, the Tribunal is primarily concerned with the resolution of issues between particular parties. The issue before us is the gender neutrality of the proposals regarding a comparison system put forward by Women's College Hospital. We have concluded that SKEW has an incidental interest in the subject matter and outcome of these proceedings; that it is the Hospital which is obligated to respond to the allegations raisedbyONAand whichis in a position to bring to the attention ofthe Tribunalthe issues, evidence, and legal considerations upon which its defence rests; and finally, not only would the determination of the issues intheseproceedingsbedelayedifSKEWwasaddedasapartybutalso ONA would be prejudiced by the prospect of facing a double defence on the issue of the Hospital's proposals for a gender neutral comparison system.

3 Weighing all the factors and criteria, and assuming that we have the authority to grant party status to SKEW, we are of the view that it would be inappropriate to exercise our discretion in favour of adding SKEW as a party in these proceedings.

4 Accordingly, SKEW's application is dismissed.