Ontario Public Service Employees Union v. Grey Bruce Regional Health Centre
0015-89; 0032-89 Ontario Public Service Employees Union, Applicant v. Grey Bruce Regional Health Centre, Respondent;GreyBruceRegionalHealthCentre Applicant v. Ontario Public Service Employees Union, Respondent
Before: Patricia Hughes, Alternate Chair; Janet Slone Taylor and Melda Okoye, Members
Appearances: Elizabeth J. ShiltonLennon, FrancesLankin, and TerryMoore for Ontario Public Service Employees Union; Janice Baker and John Wakely for Grey-Bruce Regional Health Centre.
Cite As: Grey Bruce Regional Health Centre
Review Services - Notice
The Tribunal ordered that the Pay Equity Office be given notice of the issues in dispute before it would determine whether it had jurisdiction to hear the Health Centre's Application. This was the first time the specific issue of whether an application must be made to Review Services before being made to the Tribunal had come before the Tribunal. Because the Act clearly contemplates distinct roles for the Office and the Tribunal, it may be correct that the Tribunalneednotgive noticeto the Pay Equity Office in order to determine the jurisdictional issue before it. However, it might be of assistance for the Tribunal to have the views of the Office on the ramifications of not following the process set out in the Act or on what constitutes "following the process".
Services de révision - Avis
Le Tribunal a ordonné qu'un avis soit donné au Bureau de l'équité salariale avant de décider s'il avait compétence pour entendrelaplainteduCentre de santé. C’etait la première fois que le Tribunal est saisi de la question de décider si une requête doit être présentée aux Services de révision avant de lui être présentée. Il peut être exact que le Tribunal n' a pas besoin de donner un avis au Bureau de l'équité salariale afin de trancher la question de compétence dont il est saisi étant donné que la Loi prévoit clairementdesrôlesdistinctspourleBureau et le Tribunal. Toutefois,leTribunalpeutjugerutiled'obtenir lepoint de vue duBureausur ce qui peut arriver s' il ne suit pas le processus precise dans la Loi ou sur la definition de 1'expression "suivre le processus”.
DECISION OF THE TRIBUNAL, NOVEMBER 28, 1989
1Tribunal File No. 0015-89 involves allegations by the Ontario Public Service Employees Union ("OPSEU") thatGrey Bruce Regional Health Centre ("Grey Bruce") hasnegotiatedinbad faith, as wellas the question of the gender neutrality of the comparison system proposed by Grey Bruce. OPSEU had appliedforthe assistanceofReviewServices; the Review Officer assigned to that application(PayEquity File No. 89.0076) advised the Tribunal by letter dated September 12, 1989, that a settlement could not be reached and he would not be making an order in the matter. It is in that sense that it is appropriate to describethe matter as having been "referred" by the Review Officer to the Tribunal, eventhoughOPSEU itself made an application to the Tribunal. File No. 0015-89 was set down for a Pre-Hearing Conference held on November 15, 1989.
2At the Pre-Hearing Conference, OPSEU was served by Grey Bruce with an application to the Tribunal,namingOPSEUasrespondent. That application, which was filed with the Tribunal on November 16, 1989,and wasgivenTribunalFile No. 0032-89, alsoinvolvesallegations offailingto negotiateingood faith, including the issue of bargaining on the basis of the comparison system proposed by Grey Bruce. It was listed for hearing at the same time as File No. 0015-89. The Pre-Hearing Conference Memorandum of Agreement stated, in part, that OPSEU objected to Grey Bruce's "fil[ing] a Request for Hearing", but did not give the reason for the objection.
3At the outset of the hearing (on November 24, 1989), counsel for OPSEU began to make submissionsonOPSEU'sobjectionto our hearing the application in File No. 0032-89. Itwasclearfrom herinitialsubmissions thatherpositiondepended atleastinpart onthe November16thapplication'shaving not been processed through Review Services prior to being filed with the Tribunal, onhercontention that the allegations raisedinFile No. 0032-89 had not been before the ReviewOfficer,and onthe factthatthe application which had been before the Review Officer had been made by OPSEU. In other words, OPSEU'sobjectionofnecessityinvolvesconsiderationofthe scheme.establishedby the Pay Equity Act, 1987 ("the Act") for the filing of complaints under the Act and for the manner in which complaints arrive at the Tribunal. (Grey Bruce has now filed an application with Review Services which we understand to be in relation to the matters raised in its November 16th application to the Tribunal.)
4The Tribunal has already had occasion to consider the manner in which the functions performed by Review Services and the Tribunal interrelate in the context of when a party may request a hearing before the Tribunalina matterapparentlyongoingbeforea Review Officer [Haldimand-Norfolk (No. 1) (1989) 1 P. E. R.1]and inthe context ofwhethera responsemayraiseallegations notbrought at Review Services [Haldimand-Norfolk (No.2) (1989) 1 P.E.R.13]. In a sense, we are required to consider the reverse of the first of those two aspects of the legislative scheme: that is, whether the filing of an application with the Pay Equity Office is a necessary precondition of the filing of anapplication with the Tribunal; or, phrased somewhatdifferently, whetheranapplicationfiledwith the Tribunal may be grounded in issues canvassed before the Review Officer, even though they were not not framed as specific allegations.
5Because of the nature of the issues and the role of the Pay Equity Office in the process established by the Act, we asked the parties to address whether we should give notice of the objection to the Pay Equity Office. Both counsel submitted that we did not need to give notice and that we could decide whether File No. 0032-89 was properly before us on the basis of submissions of the parties to the application. After hearing the submissions of counsel, we recessed and then delivered the following oral ruling:
This isthe first time this specific issue has come beforethe Tribunal:thatis,the questionof whetheranapplicationmusthave beenmadeto ReviewServicesbeforebeingmadetothe Tribunal or whether the issues therein must be addressed at the Review Services stage before coming before the Tribunal. While it may be correct that we do not have to give notice to the Pay Equity Office to determine whether we have jurisdiction over File No. 0032-89,sincethe Act clearlycontemplatesa process whichgivesdistinctrolestothePay Equity Office and to the Tribunal, we believe it might be of assistance to us to have the views of the Pay Equity Office on the ramifications of not following the process set out in the Act or on what constitutes "following the process".
We note that the delay in our hearing this matter could have been avoided had the basis of OPSEU's objection been stated in the Pre-Hearing Conference Memorandum of Agreement. Notice to the Pay Equity Office could have been given in time for submissions to proceed today. (In response to this portion of our ruling, counsel for OPSEU emphasised that OPSEU had been served withGreyBruce'sapplication only at the Pre-Hearing Conference and had not had time to formulate the basis of its objection, an emphasis in which she was supported by counsel for Grey Bruce.)
Accordingly, wedirect the Registrar to give notice ofthis preliminaryobjectionto the Pay Equity Office. We further direct that the Registrar abridge the time limits for the filing of a Response by the Pay Equity Office and Replies thereto to permit submissions on the preliminary objection to proceed on December 8, 1989, the next scheduled date of hearing.