0157-90: Ontario Nurses’ Association, Applicant, v. St. Michael’s Hospital, Respondent 0212-91: St. Michael’s Hospital, Applicant, v. Ontario Nurses’ Association, Respondent
Before: Mary Ellen Cummings, Vice-Chair; Donald Dudar and Geri Sheedy, Members
Appearances: Laura Trachuk, Cindy Wilkey and Maureen O'Halloran for the Ontario Nurses' Association; Peter Chauvin, AndrewRomanand Michael Moga for St. Michael's Hospital; Mary Eberts and Linda Telgarsky for Hay Management Consultants Limited
Cite As: St. Michael's Hospital (No. 1) (1991), 2 P.E.R. 183
Practice and Procedure - Intervention
Hay is not entitled to be a party under subsection 32(1) of the Act. Persons other than those enumerated in ss.32(1) maybe parties pursuant to s.5 of the Statutory Powers Procedure Act provided they are "entitled by law”to be so named. The Tribunal's focus in the case is not the gender neutrality of the Hay system in general, but the gender neutrality of the Employer's proposals. Hay in its capacity as marketer of the job evaluation system has no obligations under the Act suchthatthe Tribunal could order a remedy against it. It also has no cause of action maintainable against ONA at the Tribunal. The Tribunal rejected the request to intervene.
Pratique et procedure - Intervention
Hay n'a pas le droit de constituer une partie à l'instance, en vertu du paragraphe 32(1) de la Loi. D'autres personnes que celles qui sont énumérées au paragraphe 32(1) peuvent être des parties conformément à l’article 5 de la Loi sur l'exercice des compétences légales. Si la loi leur confère ce droit, il importe d'examiner si Hay a effectivement droit a ce statutenvertudelaloi. La Loi ne confère aucune obligation à Hay en sa qualité de commercialisateur du système d'évaluation d'emplois. Dans la présente affaire, le Tribunaln'étudie pas le charactère non sexiste de l'ensemble du système de Hay, mais plutôt le caractère non sexiste des propositions de l'employeur. En plus de n'avoir aucune obligation en vertu de la Loi à l'encontrede laquelle leTribunalpourrait ordonnerunrecours,Hayne possède aucune caused'actionqu'il peut intenter à l'encontre de l'ONA devant le Tribunal.
DECISION OF THE TRIBUNAL, AUGUST 19, 1991
1Hay Management Consultants Limited ("Hay") has sought to be added as a party in these proceedings between the Ontario Nurses' Association ("ONA") and St. Michael's Hospital (the "Hospital"). ONA alleges that the Hospital has breached subsections 4(1) and (2), 5(1), 6(1) and (5), 7(1) and (2), 12 and 14(1) and (2) of the Pay Equity Act, 1987, S.O. 1987, c.34, as amended, (the "Act") in proposing a comparison system that would be gender-biased when applied to the nurses in the bargaining unit represented by ONA. Hay alleges that, as the marketer of the comparison system the Hospital proposed, it possesses a commercial interest in the outcome of these proceedings which entitles it to be added as a party.
2We wish to make it clear that our consideration of Hay's application is only in the context of its request tobeapartyintervenor. Hay is not seeking status as a non-party intervenor or "friend of the court", as this type of intervenor is sometimes called. Although decisions of the courts have sometimes confused these two typesofintervenor,their rootsinthe lawariseout ofdifferent purposesand their rightsand obligations, once allowed to participate in the proceedings, are quite different.
3Party intervenors have been allowed to participate in proceedings in order to protect a general or particular interest. They are allowed to join the action in the interests of efficiency; a multiplicity of proceedings is avoided because in return for, the right to participate as a party, the intervenor is bound to results of the decision.
4Non-party intervenors, on the other hand are allowed to participate in the proceedings not because they necessarily have an interest, but because they have a point of view that the decision-maker believes willbe informative. Unlike a party intervenor, they do not automatically havefullrightstoparticipate,that is,tocallevidence,cross-examinewitnesses,andmakefullargument. They are not bound by the decision and have no right to appeal anadverse decision. The extent of their participation must be determined by the decision-maker.(Foradiscussionofnon-partyintervenorsbeforethe Tribunalsee Wentworth County Board of Education (1990), 1 P.E.R. 132).
5Against that backdrop, we considered the application in this case.
6Hay argued that our jurisdiction to add parties can be found in subsection 29(2)(b) of the Act, and section 5 of the Statutory Powers Procedure Act, R. S. O. 1980, c.484 (the "SPPA"). ONA argued that the parties to the proceedings are set out in subsection 32(1) of the Act and that the Tribunal cannot add to them.
7Subsection 32(1) of the Act and section 5 of the SPPA state:
32(1) Where a hearing is held before the Hearings Tribunal or where a review officer investigates for the purposes of effecting a settlement of an objection or complaint, the parties to the proceeding are,
(a) the employer;
(b) the objector or complainant; and
(c) the bargaining agent (if the pay equity plan relates to a bargaining unit) or the employees to whom the plan relates (if the plan does not relate to a bargaining unit).
- The parties to any proceedings shall be the persons specified as parties by or under the statuteunderwhichthe proceedings ariseor, ifnotso specified,persons entitledbylaw to be parties to the proceedings.
1 We agree with the reasoning of the Tribunal in Women's College Hospital (No. 1) (1990), 1 P.E.R. 53 which held that the power to control our procedures in subsection 29(2)(b) does not override the subsection 32(1) declaration of the parties to the proceedings. It is common ground that Hay, in its capacityas amarketerofjob comparisonsystems,isnotone ofthe enumeratedpartiesinsubsection32(1). Therefore, any jurisdiction to add Hay as a party must be found in section 5 of the SPPA.
2 At issue is whethersubsection32(1)providesan exhaustive list of the parties to proceedings before the Tribunal or, whether by virtue of section 5 of the SPPA, persons who are entitled by law to be parties can be added. (For a full analysis of the case law seeWomen's College Hospital (No. 1) and Wentworth County Board of Education).
3 For the purposes of reaching a decision in this case, it is not necessary to resolve that issue. Without decidingwhethersection5 ofthe SPPA permitsthe Tribunalto add other parties, we determined whether Hay met the test of a party "entitled by law to be a party to the proceedings". We used the tests set out by the Tribunal in Women's College Hospital (No. 1) at paragraph 72.
What is the nature of proceedings before the Tribunal? What are the issues in this particular case?
1 Hay argued that theallegationscontainedinONA'sApplicationconstitute a full scale attack on the job comparison system marketed by Hay. Not only are the allegations levelled at the application of this systeminthisworkplace,itwasargued,theyaremadeagainstHay'sgenericsystem. Hay said that ONA's pleadings allege that the Hay system is so fundamentally flawed that it cannot be used by the Hospital as a basis for negotiations about a gender-neutral comparison system. Hay argued that since ONA will not consider Hay as a basis for negotiation, we can only conclude that the generic Hay system is in dispute in these proceedings. Therefore, it is argued, Hay faces the risk of a finding by the Tribunal that places its ability to do business at risk.
- We have difficulty seeing that potential consequence. As the Tribunal said in Women's College Hospital (No. 1), at paragraph 77, the nature of proceedings before the Tribunal is disputes between parties who have rights and obligations under the Act:
A review of the Pay Equity Act, 1987 reveals that the disputes which the Tribunal will be consideringare moreinthenatureof lis inter partes. The statute requires that the Tribunal adjudicateuponmattersarisingfromthe preparation and negotiation of a pay equity plan. Italsorequires,incertaincases,thatwe determine whether the Act hasbeenbreached by one of the parties identified in the Act as a participant in the pay equity process. Furthermore, the remedies provided under subsection 25(2) are such that they involve a resolution of particular disputes between particular parties.
- Hay, in its capacity as a marketer of job comparison systems does not have obligations under the Act. In a case such as this, the focus is not the gender neutrality of the "Hay system" in general, but the
gender neutrality of the proposals put forward by the Hospital, in the context of the female job classes to be reviewed in this bargaining unit and their potential male job class comparators.
2 We see that the Tribunal has followed that approach in the first decision released on the issue of the gender-neutrality of a comparison system, Haldimand-Norfolk (No.6) (1991), 2 P.E.R. 105. The findings made by the Tribunal are grounded in its assessment of the ability of the proposed comparison system to collect information about the female job classes in issue; to provide a mechanism to determine how value will be attached to thatinformation;andtoapplythatmechanismin a gender-neutral way. The emphasis of the Tribunal was very much on the gender-neutrality of the proposed comparison system in that workplace. In this case, the emphasis will be the same.
- In an oral ruling, we identified the issues in this case as follows:
The Ontario Nurses' Associationalleges that the Respondent's proposedjobcomparison system is inappropriate for this workplace. Although the Respondent has alleged that its proposed comparison system is flexible and can be modified through negotiations to meet the needs ofthis workplace, ONA alleges that it cannot be modified sufficiently to produce gender-neutral results when applied to nurses in this workplace.
3 ONA alleges that it can establish that the comparison system proposed by the Hospital is so fundamentally flawed that it cannot be successfully modified and therefore, cannot be used as a basis for negotiations in this workplace. Whether ONA can makethatcaseoutisanissueofproof,but it does not change the nature of the dispute before the Tribunal.
4 We recognise that we may have to resolve some complex questions of what evidence is relevant to the matters in dispute, but again, that does not change the nature of the dispute. Our ruling identifying the issues will assist us in resolving the evidentiary questions.
What is the nature and scope of the proposed intervenor's concern in these proceedings?
1 Hay alleges that it has a commercial interest in the outcome of these proceedings. If ONA succeeds in its Application, Hay says that it will suffer damage both with respect to its ability to contract with this Hospital and with other employers in the Province.
2 We were provided with case law that held that a commercial interest was sufficient to justify intervention. In other proceedings, that may well be the case. In other proceedings, there may be general classes of persons over whom the court or tribunal has jurisdiction. But under the Act, there are very specific entities over whom the Tribunal has the power to award remedies. That group does not include marketers of job comparison plans. We do not believe that we have the jurisdiction to order remedies either for or against Hay, in its capacity as a marketer of job comparison systems.
3 Hay relied on Fishing Vessel Owners' Association of British Columbia et al. v. Canada (1985), 57 N.R. 375 (Fed. C.A.). However, a careful reading of the case indicates that the Court rejected the
applicant's right to be a party to the proceedings; instead it was given non-party intervenor status. The Court stated, at paragraph 13:
The test to be applied to enable a person to be joined as a party is that the action or at leastpart ofthe actionmust bemaintainable as betweenthe applicant and the partyagainst whom the former is seeking to be joined.
1 We apply the same test in this case. Even if Hay has a concern in the outcome of these proceedings, it does not have an action maintainable against ON A at the Tribunal. Therefore, there is no multiplicity of action to avoid. Hay does not have a sufficient concern in these proceedings to be added as a party intervenor.
2 It is possible for Hay to appear as a witness for the Hospital. Hay argued that this was not an acceptable alternative because inthe role ofwitness, it would have little orno controloverthe shapeofthe litigation, that is, what evidence would be led and how. Hay also argued that it may well find itself in a conflictwiththe Hospital: Hay would want to approach the case one way, while the Hospitalwould want to follow another course. Hay argued that it must be able to defend its interests directly, not through the Hospital.
3 In answer to those concerns, we go back to the nature ofthe proceedings before the Tribunal, the issues in these proceedings, and Hay's interest in them. These proceedings are between ONA and the Hospital because they are the parties with rights and obligations under the Act. It is for those parties to shapethelitigationanddeterminewhatevidencewillbecalled. While Hay may have some interest in these proceedings, it has no rights and obligations under the Act.
4 Since we have concluded that Hay does not have a sufficient interest to be a party entitled by law to participate in the proceedings, within the meaning ofsection5 ofthe SPPA, it is not necessary for us to consider whether its participation would prejudice the other parties.
5 The application to intervene is therefore denied.