0188-91 Ontario Nurses' Association, Applicant v. Women'sChristianAssociationofLondon,Operator of the Parkwood Hospital, Respondent
Before : Patricia Hughes, Alternate Chair; Bruce Budd and Donald Dudar, Members
Appearances: Anne Marie Delorey, Pauline Lefebvre-Hinton, Ian Galbraith, Terri Labate and Cheryl Legg for the Applicant; Bryan O'Byrne, Mona Anis, Brad Hollister for the Respondent.
Cite As: Parkwood Hospital (1991), 2 P.E.R. 178
Jurisdiction - Canadian Charter of Rights and Freedoms
The requirementsestablishedbythe Supreme CourtinCuddyChicksLtd. v.Ontario(Labour Relations Board) are met by the Tribunal in the circumstances of this case. Under s.30 of the Act the Tribunal has the power to "determine all questions of factor law that arise in any matter before it". The power to interpret law confers a concomitant power to determine whether that law is constitutionally valid. The Tribunal has jurisdiction over the whole of the matter before it: the parties; the subject matter; and the remedy sought. The Union asked that the Tribunal "amend" s. 6 of the Act to comply with the Charter. It was not clear to the Tribunal that it had the power to amend legislation, nor that the appropriate remedy inthiscasewouldbeto"amend"s. 6. It therefore reserved on whether the Tribunal hasjurisdictionunder ss.24(1) of the Charter.
Compétence -Charte canadienne des droits et libertés
Dans l'affaire Cuddy Chicks Ltd. c. Ontario (Commission des relations de travail) la Cour suprême astatué que laCommissiondes relations detravailde l'Ontario était compétentepour appliquerla Charte. Afin d'appliquer la Charte, untribunaladministratifdoit avoir compétencesur toutel'affairedont ilestsaisi: lesparties,l'objetdel'affaireetlerecoursdemandé. Le syndicat a demandé au Tribunal de modifier larticle 6 de la Loi afin qu'il soit conforme à la Charte. Le Tribunal n'était pas certain qu'il avait le pouvoir de modifier la loi ou que le recours convenable dans les circonstances était de modifier l’article 6. Par conséquent, il a pris sous réserve sa décision en ce qui concerne la question de savoir s'il est compétent en vertu du paragraphe 24(1) de la Charte.
DECISION OF THE TRIBUNAL, JULY 8, 1991
1This decision deals with the Tribunal's jurisdiction to apply the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B of the Canada Act, 1982 (U.K.), 1982, c.1l ("the Charter") to the Pay Equity Act, 1987 ("the Act"). We conclude thatsection30ofthe Act and section 52 of the Constitution Act, 1982 permit and oblige us to apply the Charter when it is raised in a matter before us. We reserve on our jurisdiction under section 24 of the Charter.
- The Ontario Nurses' Association ("ONA") and The Women's Christian Association of London, Operator ofthe ParkwoodHospital("Parkwood") are required by section 14 of the Act to negotiate and endeavourtoagreeonapayequityplanfortheemployeesofParkwoodrepresentedbyONA. Parkwood was to have posted the plan by January 1, 1990. ONA and Parkwood did agree on a gender neutral
comparison system, but could not agree on certain other matters. Parkwood applied to the Pay Equity Commission. The Review Officer appointed issued an Order based on section 6 of the Act in respect of which ONA has requested a hearing before the Tribunal under subsection 24(6) of the Act.
2This case specifically involves whether section 6 of the Act contravenes the Charter. The relevant portions of section 6 read as follows:
6(1) For the purposes of this Act, pay equityisachievedwhenthe job rate for the female job classthatisthe subjectofthe comparisonisatleastequalto the job ratefora male job class in the same establishment where the work performed in the two job classes is of equal or comparable value.
(2) Where there is no male job class with which to make a comparison for the purposes of subsection (1), pay equity is achievedwhenthe job rate for the female job class that is the subject of the comparison is at least equal to the job rate of a male job class in the same establishment thatatthe time ofcomparisonhada higherjob ratebut performs work of lower value than the female job class.
(3) Ifmorethanone comparisonispossible betweena female jobclassinanestablishment and male job classes in the same establishment, pay equity is achieved when the job rate for the female job class is at least as great as the job rate for the male job class,
(a) with the lowest job rate if the work performed in both job classes is of equal or comparable value; or
(b) with the highest job rate, if the work performed in the male job class is of less value.
1 The Review Officer found that there was one female job class, that of Registered Nurse. She applied subsection 6(1) of the Act and ended her search fora comparatorwhenshe found amale job class which was of "equal or comparable value" to the Registered Nurse, that is, the Manager of Physical Operations (McCormick House): it was scored at 36 points higher than the Registered Nurse.
2 ONA says that the search for a comparator should not end when a male job class of equal or comparable value is found if there aremale job classeswhichperformworkoflowervalue thanthe female job class at issue but which are paid a higher rate. In this case, ONA says, there is more than one comparatoravailableandsubsection6(3)should be appliedto allowthe selectionofthemostadvantageous comparator. If section 6 does not permit that approach, it is contrary to the Charter, in ONA's view. Parkwood arguesthatwedonothave jurisdictiontohearONA's Charter challenge, but that, in any case, section 6 does not contravene the Charter.
3Parkwood and ONA addressed our jurisdiction under subsection 24(1) of the Charter and under subsection 52(1) of the Constitution Act, 1982:
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdictionto obtain such remedy as the court considers appropriate and just in the circumstances.
52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitutionis,to the extent ofthe inconsistency, of no force or effect.
- Counsel for both Parkwood and ONA argued the issue on the basis of, among other cases, the Ontario Court ofAppeal's decisioninCuddy Chicks, the FederalCourtofAppeal'sdecisioninTetreault-Gadoury, and the Supreme Court of Canada's decision in Douglas College. [Cuddy Chicks Limited
v. Ontario Labour Relations Board et al (1989) 1989 CanLII 4139 (ON LRB), 70 O.R. (2d) 179 (C.A.); Re Tetreault-Gadoury and The Employment and Immigration Commission of Canada (1988), 1988 CanLII 5634 (FCA), 53 D.L.R. (4th) 384 (F.C.A.); Douglas/Kwantlen Faculty Association v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570).] Since then, however, the Supreme Court of Canada has released its decisions in Cuddy Chicks and in Tetreault-Gadoury. [CuddyChicksLtd.v.Ontario(LabourRelations Board) (June 6, 1991, S.C.C.); Tetreault-Gadoury v. Canada (Canada Employment and Immigration Commission) (June 6, 1991, S.C.C.] The Supreme Court's decision in Cuddy Chicks is most applicable to the circumstances of the Tribunal.
1 In Cuddy Chicks, paragraph2(b) ofthe Labour Relations Act, R.S.O.1980, c.228, whichexempts agriculturalworkers fromcoverage bythatAct,wasthe subjectofa challenge underthe Charter. A union applied for certification to represent a group of workers; the employer argued that the workers were agricultural and that paragraph 2(b) constituted a bar to certification. The union claimed that paragraph 2(b) contravened the Charter. The Court of Appeal held that the Labour Relations Board had jurisdiction to hear the Charter challenge under section 52 of the Constitution Act, 1982, but not under section 24 of the Charter. Counsel for Parkwood conceded during the hearing that under the Court of Appeal's decision in Cuddy Chicks, the Tribunal had jurisdiction to apply the Charter by virtue of section 52.
2 In its decision in Cuddy Chicks, the Supreme Court held that the Labour Relations Board's jurisdiction to apply the Charter arises fromtwo sources:itspowersasdefinedbyitsenablingstatute, the Labour Relations Act; and subsection 52(1) of the Constitution Act, 1982. Section106 ofthe Labour RelationsAct allowsthe Labour Relations Board to decide"allquestions oflaw"inmattersproperlybefore it. Subsection52(1)ofthe Constitution Act, 1982 requires the Board to ensure, in applying the law, that that law is constitutionally valid, including whether it complies with the Charter. It was not necessary to decide whether the Labour Relations Board had jurisdiction under subsection 24(1) of the Charter.
- In confirming its earlier analysis in Douglas College, the Supreme Court said in Cuddy Chicks that s.52(1) does not function as an independent source of an administrative tribunal's jurisdiction to address constitutional issues . . . Rather, jurisdictionmusthave expresslyorimpliedlybeenconferredonthe tribunal by its enabling statute or otherwise.
Furthermore, to apply the Charter, "a tribunal . . . must already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought". This scheme "mirrors the requirements for a court of competent jurisdiction under s.24(1) of the Charter as outlined in Mills v. The Queen” (1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863).
3 The Court also confirmed two restrictions on the power of tribunals to apply the Charter. The first restriction is that the effect of section 52 is restricted to the case before the board or tribunal, since administrative tribunals do not have the power to grantaformaldeclarationofinvalidity. A declaration of invalidity means that the offending provision has no further effect at all, while the tribunal's finding of "no force or effect" can affect only the parties involved in the particular case. The second limitation is that the tribunal's decision in Charter cases is not subject to curial deference.
4The requirements established by the Supreme Court were met by the Labour Relations Board in Cuddy Chicks; they are also met by the Tribunal in the circumstances of this case. As does the Labour Relations Board under section 106 of the Labour Relations Act, the Pay Equity Hearings Tribunal "has exclusive jurisdictionto exercisethe powers conferreduponitbyor under[the Pay Equity Act,1987]and to determine all questions of fact or law that arise in any matter before it" under section 30 of the Pay Equity Act, 1987. Thus the Tribunal's enabling statute expressly confers on the Tribunal "the power to interpret law [which] holds a concomitant power to determine whether that law is constitutionally valid".[Cuddy Chicks, supra]
- With respect to "jurisdiction over the whole of the matter before it", the Supreme Court said the following about the Labour Relations Board's jurisdiction on the facts in Cuddy Chicks:
It is clear that [the Labour Relations Board] has jurisdiction over the employer and the union. The issue here centres on its jurisdiction over the subject matter and remedy. The subject matter before the Board cannot be characterized simply as an application for certification, which would certainly fall within the authority of the Board. This is an application which requires the Board to subject s.2(b) of the Act to Charter scrutiny in order to determine whether the application for certification is properly before it. Similarly, the remedy of certification requires the Board to refuse to give effect to s.2(b) of the Act because ofinconsistencywiththe Charter.Sincethe subjectmatterandremedyinthis case are premised on the application of the Charter, the authority to apply the Charter must be found in the Board's enabling statute.
5In the case beforeus,theTribunalhas jurisdiction over the persons: the employer, Parkwood, and the bargaining agent, ONA. The subject matter is the appropriate male comparator; the Tribunal must "subject [section 6 of the Pay Equity Act, 1987] to Charter scrutiny in order to determine whether the application[abouttheappropriatemalecomparator] is properly beforeit". We thus have jurisdiction over the subject matter. Should we find that section 6 contravenes the Charter, the effect of section52 would bethatthe offendingportions ofsection6 would be of"no forceor effect" in this particular case. To the extent thatthe remedyisto refuseto give effectto section6 or portions ofit,therefore,wehave jurisdiction over the remedy.
6Having regard to the Supreme Court's decision in Cuddy Chicks, as well as its decisions in Tetreault-Gadoury and Douglas College, therefore,weare satisfiedthatsection30 ofour ownenabling statute and section 52 of the Constitution Act, 1982 grant us the jurisdiction and impose on us the duty to hear ONA's challenge to section 6 of the Act.
7There may be one important difference between any of those cases and the case before us, however. None of those cases involved a remedy other than that flowing from the operation of section 52 of the Constitution Act, 1982. Here, ONA has asked that we "amend" section 6 to make it comply with the Charter. Both Parkwood and ONA agreed that we could not amend section 6 unless we had jurisdiction under subsection 24(1) of the Charter. ONA says we do have that jurisdiction; Parkwood says we do not. It is not clear to us that the appropriate remedy wouldbeto"amend"section6,northat we have the power to amend legislation. In any event, these are not questions we need to or can decide at this stage of the proceedings; rather, they can and should wait untilwehave heard evidence and submissions on the application of the Charter to section 6 of the Act in the context of the circumstances of this case.
- We therefore reserve our decision on whether the Tribunal also has jurisdiction under subsection. 24(1) of the Charter. There is another reason why we must reserve on that question, arising out of the Supreme Court's briefconsiderationofsubsection24(1) ofthe Charter in Cuddy Chicks. The Court held that the criteria in Mills are applicable under section 52, and that these criteria were satisfied in Cuddy Chicks; it nevertheless declined to decide whether the Labour Relations Board is a "court of competent jurisdiction". Thus the question of whether a tribunal is a "court" has become of greater interest. The Court said on this point:
An administrative tribunal need not meetthe definitionofa courtofcompetent jurisdiction in s.24(1) of the Charter in order to have the necessary authority-to subject its enabling statute to Charter scrutiny. In the present case, the relevant inquiry is not whether the tribunalisa "court"but whetherthe legislatureintended to confer onthe tribunalthe power to interpret and apply the Charter.
8The questionofwhetheratribunalisa "court" was not directly considered in the cases at the lower levels and was not addressed by the parties in this case. The participants in this case are therefore invited to make submissions on the question of whether the Tribunal is a "court" for the purposes of subsection 24(1) of the Charter. These submissions may be made during final argument on the Charter issues; of course,anyevidenceonthispointshouldbecalledpriortofinalargument. We also remind the participants that the Tribunal must have sufficient evidence of the circumstances in this case before we can reach a conclusion about the Charter's applicability to section 6 of the Act in the matter before us.
9ONA, Parkwood and the Attorney General of Ontario, who has intervened in these proceedings, are to be prepared to lead evidence, if theyintend to do so, and make submissions on all aspects of how the Charter applies to section 6 of the Act on the next scheduled day(s) of hearing.