0131-90 In the matter of a referral under subsection 24(5) of the Pay Equity Act, 1987 relating to the Senior Officers' Association of the Timmins Police Force and the Board of Commissioners of Police for the City of Timmins
Before: Ralph Palumbo, Vice-Chair; Bruce Budd and Janet Slone Taylor, Members
Cite As: Re Timmins Board of Commissioners of Police (No. 2) (1991), 2 P.E.R. 82
Review Services - Referrals
A Review Officer formed the opinion that neither of the parties had complied with his order and referred the matter to the Tribunal. Neither party made an application to the Tribunal. In Re Timmins Board of Commissioners of Police (No. 1) (1990), 2 P.E.R. 50, the Tribunal directed the parties to make submissions as to how to proceed. The Parties did not respond specifically to the Tribunal's questions, but instead indicated that they were still in the process of negotiating pay equity. The Tribunal held that it was not appropriate for it to proceed with the referral.
Services de révision - Renvois
L'agent de révision était d'avis que les parties n'avaient pas respecté son ordre et il a renvoyé la question au Tribunal. Aucune partie n'a présenté de requête au Tribunal. Dans Commission de police de Timmins (no 1) (1990), 2 P.E.R. 50, le Tribunal a ordonné aux parties de lui présenter des observations sur la marche à suivre. Les parties n’ont pas répondu spécifiquement aux questions du Tribunal mais elles ont indiqué qu'elles étaient encore en train de négocier un programme d'équité salariale. Le Tribunal a statue qu'il n'était pas approprié de donner suite au renvoi.
DECISION OF THE TRIBUNAL, MARCH 15, 1991
1The issue in this case is how the Tribunal ought to deal with a Referral by a Review Officer under subsection 24(5) of the Pay Equity Act, 1987, S.O. 1987 c.34 (the "Act"), in circumstances where the Referral states that neither of the parties here has complied with the Officer's Order. The difficulty is that neither party has made an Application to the Tribunal and therefore there is no one who will take carriage of the proceedings.
2On October 16, 1990 the Review Officer referred this matter to the Tribunal pursuant to subsection 24(5) of the Act. The Referral stated that the Officer's Order of July 23, 1990 was not being complied with. The Officer further clarified the situation by filing another Referral dated October 24, 1990 about the same Order. This Referral stated that the Board of Commissioners of Police for the City of Timmins (the "Board") and The Senior Officers' Association of the Timmins Police Force (the "Association") have not complied with the Officer's Order.
3The Review. Officer's Order of July 23, 1990 states:
I was appointed Review Officer in this matter on April 10, 1990 pursuant to an application for Review Services submitted by the Association dated February 23, 1990. The parties
were negotiating a pay equity plan with a mandatory posting date and, if required, a first adjustment date of January 1, 1990. In order to investigate the matter and attempt to effect a settlement, I met with the parties on May 24, 1990 ....
As the parties have not sought male comparators from within their own bargaining unit and only evaluated one male job class in the establishment, it is obvious that they have not complied with Section 6 of the Act. Therefore I will be issuing an order in accordance with Section 24 (1) of the Pay Equity Act, 1987 ....
THE ORDER
I hereby order the Board of Commissioners of Police for the City of Timmins and the Senior Officers' Association to compare the female job classes in the Association's bargaining unit with male job classes in the establishment in a manner consistent with the requirements of Section 6 of the Pay Equity Act, 1987. The parties shall advise me of their findings in this regard on or before September 17, 1990 ....
Further to my appointment under Section 16(1) of the Act, I will monitor the parties' continued progress...
- As we noted in our decision of November 5, 1990, this matter raises some interesting and difficult questions of both procedure and substance. For that reason, and in order to comply with subsection 25(1)(c) of the Act, which requires that the Tribunal hold a hearing when a Review Officer refers a matter to the Tribunal under subsection 24(5), we requested written submissions from the parties respecting the following issues:
i.
Are the parties, or either of them, alleging that the Review Officer's Order of July 23, 1990 has not been complied with? If so, is that party prepared to make an Application to the Tribunal?
ii.
Non-compliance Applications are dealt with under Rules 1.04 and 1.05 of the Tribunal's Rules of Practice. It is unclear whether they apply in the circumstances of this case. The Tribunal is requesting submissions respecting whether the Rules of Practice, and in particular Rules 1.04 and 1.05, do apply in the circumstances of this case? If so, which party in this case is the Applicant and which is the Respondent?
iii.
Is this matter properly before the Tribunal as it appears that the Review Officer was appointed pursuant to subsection 16(1) of the Act whereas the Referral was
made under subsection 24(5) of the Act?
We also directed the Registrar to serve notice of our Decision on the Pay Equity Office (the "Office") and invited its submissions on question 3 above.
1 The Tribunal received submissions from the Office on all three issues. The Board chose not to respond to the issues but simply wrote indicating that it had submitted another proposal to the Association "in an effort to resolve pay equity without the involvement of The Pay Equity Tribunal." Likewise, the Association did not respond specifically to the issues but did indicate that it felt that it was "neither Applicant nor Respondent at this time." The Association further indicated that the matter was "advanced to the Tribunal prematurely by the Pay Equity Review Officer" and that "the matter remains at the negotiation stage between the parties to attempt to mutually resolve the issue and comply with the Pay Equity Legislation." The Association also indicated that further meetings between the parties were being arranged to further discuss the issue.
2 We address two specific issues in this decision:
i.
The application of Rule 1.04 of the Tribunal's Rules of Practice, and
ii.
The appropriate way for the Tribunal to proceed in a case of this nature. Is there
a mechanism under the Act by which we can deal with this Referral in an effective
manner?
(1) Rule 1.04 of the Tribunal's Rules of Practice
- Subsection 24(5) states:
(5) Where an employer or a bargaining agent fails to comply with an order under this section, a review officer may refer the matter to the Hearings Tribunal.
As we have noted, subsection 25(1)(c) of the Act provides that the Tribunal must hold a hearing "if a review officer refers a matter to the Hearings Tribunal under subsection 24(5)."
- Once the matter is before the Tribunal following a Referral by an Officer, the usual course is to refer to Rule 1.04 of the Tribunal's Rules of Practice. Rule 1.04 provides as follows:
1.04 When a Review Officer decides that a settlement cannot be effected and that he or she will not be making an order, or refers the matter to the Tribunal, a hearing shall be held. The Applicant before the Review Officer shall be the Applicant before the Tribunal and shall comply with the Rules governing applications.
Does it make sense to apply Rule 1.04 in this case? We think not. It would require the Association to be the Applicant before the Tribunal. Given that the Referral states that the Association is one of the parties that has not complied with the Officer's Order, this would place the Association in a somewhat awkward position. The Association would be required under Rule 1.04 to bring the alleged non-compliance forward when it is one of the parties against whom the allegation is made.
(2) How should the Tribunal proceed in a case of this nature?
1 In this case, neither the Board nor the Association is alleging that the Review Officer's Order has not been complied with. Furthermore, neither party appears to be prepared to make an Application to the Tribunal alleging that the Order has not been complied with. The question for us is whether, in light of these circumstances, the Tribunal should continue with this Referral?
- It is implicit that in most hearings before the Tribunal, parties will present evidence for the Tribunal to consider. In the normal course this is what occurs. In this case, however, where the Referral states that neither party has complied with the Officer's Order, a rather perplexing problem arises. Who is it that must present evidence to substantiate the alleged non-compliance? There is no "natural" Applicant in this case; that is, someone who has made an allegation which he or she must prove with evidence before the Tribunal. The Office recognizes this difficulty. In its submissions it states:
In a sense the Tribunal panel is faced with two ‘Respondents’ and no ‘Applicant’ as these roles of making or, defending a case are generally known.
2 It is clear that neither the Board nor the Association wishes to pursue the Referral, and therefore the allegation of non-compliance, and the case in support of it, are left dangling, without anyone who will bring it forward. There are no provisions in the Act which assist us in these circumstances. Whereas subsection 24(5) empowers the Review Officer to make a Referral to the Tribunal, the Act is silent as to the appropriate course for the Tribunal to follow in the circumstances of this case.
- In its submissions, the Office made an interesting argument respecting the nature of the hearing that would be undertaken by the Tribunal if we hear this Referral. In this case, neither the Board nor the Association has requested a hearing before the Tribunal respecting any substantive pay equity issue being negotiated between them. Rather, the Tribunal has before it a Referral by the Review Officer. In these circumstances the Office argues that where there is no request for hearing by either party under subsection 24(5) of the Act:
... both section 24(5) 'Respondents' are required to respond only to the question of compliance; the merits of the order are presumably not at issue. This approach will likely result in a relatively contained hearing; unless the parties establish that they have complied with the order, the Tribunal is being asked by the section 24(5) referral to simply confirm the order by decision under section 25(2)(d) .
- With respect, this approach does not resolve the issue of who is the Applicant and has carriage of these proceedings. There are other difficulties with this approach. In this case, neither the Board nor the Association has any facts to respond to. Furthermore, there is no mechanism in the Act which would require the parties to come forward and "establish that they have complied with the order" of the Review Officer once a Referral under subsection 24(5) is made. Rather, during the course of the hearing of the Referral, the party against whom an allegation is made may, in the course of its response, attempt to prove that the Order was complied with. However, this scenario assumes the existence of a party who has made
such an allegation, and has complied with the Tribunal's Rules governing Applications. In this case no such party exists.
3 We also disagree with the Office's contention that "the Tribunal is being asked by the subsection 24(5) Referral to simply confirm the order by decision under section 25(2)(d)." Subsection 25(2)(d) provides that the Tribunal "shall decide the issue that is before it for hearing and... may confirm, vary or revoke orders of review officers." In our view the merits of the Officer's Order are not before us. What is before us is the Officer's Referral. The Tribunal is not being asked to confirm, vary or revoke the Order in question. There is no request to make a decision on the merits of the Order. Certainly that is not a remedy that is contained in the Referral before us.
4For the reasons noted above, we have concluded that it is not appropriate for us to proceed further with this Referral. However, the Tribunal's decision not to proceed further with this Referral in no way impairs the authority of the Officer's Order which must still be complied with. It remains open to either party to apply to the Tribunal to seek compliance with that Order. Given the decision in this case it is not necessary to deal with the applicability of Rule 1.05 in these circumstances or the third question we posed in our decision of November 5, 1990.