0223-91 Gail R. Wells, Benita Larsen, Tanya Zablishinsky, Pamela Delaurier, and John Kucharczuk, Applicants v. Liquor Control Board of Ontario, Respondent; 0225-91 Liquor Control Board of Ontario, Applicant v. Gail R. Wells, Benita Larsen, Tanya Zablishinsky, Pamela Delaurier and John Kucharczuk, Respondents; 0237-91 Joyce McConnell, Applicant v. Liquor Control Board of Ontario, Respondent
Before : Patricia Hughes, Alternate Chair; Geri Sheedy and Janet Slone Taylor, Members
Appearances: Gail Chapman, Brian Beebe and Vincent P. Johnston for the Liquor Control Board of Ontario;Sheila Cuthbertsonand LilyHarmerforGailR. Wells,BenitaLarsen, TanyaZablishinsky,Pamela Delaurier and John Kucharczuk; Joyce McConnell on her own behalf.
Cite As: Liquor Control Board of Ontario (1991), 2 P.E.R 193
Practice and Procedure -Prima facie case
The Tribunal cited its earlier decision in Peterborough (1991), 2 P.E.R. 86, in which it held that a case will only be dismissed without a hearing on the merits where it is "plain and obvious" that such a hearing cannot lead to a result contemplated by the legislation. In this case, the Tribunal acknowledged that the pleadings were sparse, but found that they went beyond bald allegations and established a prima facie case. The Tribunal also found persuasive the argument that non-union applicants have little access to information about their employer's pay equity plan and that their pleadings would therefore likely require further particulars which could only be prepared if the Tribunalordered disclosure by the employer. The parties were granted leave to provide such further particulars as were necessary and were requested to attend a second pre-hearing conference to address the need for further particulars and for disclosure.
Pratique et procédure - Cause à première vue
Le Tribunal acitésa décisionantérieuredans Peterborough (1991), 2 P.E.R. 86, dans laquelle il a statué qu'une cause sera rejetée sans audience sur son bien-fondé seulement s'il est “clair et évident” qu'une audience ne peut pas donner un des résultats qu'envisage la loi. Dans la présente affaire, le Tribunal a reconnu que les faits précisés dans les actes de procédure étaient peu informatifs, mais il a conclu qu'ils n'étaient pas que de simples allégations et qu'ils établissaient une cause à première vue. Le Tribunal a également été convaincuparl'argument suivant: l'accès des requérants non syndiqués aux renseignements sur le programme d'équité salariale de leur employeur est très limité et, par conséquent, leurs actes de procédure nécessitent d'autresdétails qu'ils ne peuvent obtenir que sileTribunalordonne à l'employeur de les divulguer. Les parties ont obtenu l'autorisation de fournir les détails supplémentaires jugés nécessaires et ont été invitees à assister à une deuxième conférence préparatoire à l'audience sur le besoin de foumir d'autres détails et de divulguer certains renseignements.
DECISION OF MEMBERS SHEEDY AND SLONE TAYLOR, OCTOBER 10, 1991
- These three files concern objections to a review officer's Order. In file 0223-91, Gail R. Wells, Benita Larsen, Tanya Zablishinsky, Pamela Delaurier and John Kucharczuk (Gail R. Wells et al) applied for a hearingundersubsection16(4)3. They claimed that the Liquor Control Board ofOntario("LCBO")had
failed to establish compensation practices that provide for pay equity, by undervaluing their work, by adopting a gender-biased comparison system and by adopting a job comparison procedure which was flawed and inappropriate to establish a gender-neutral pay equity plan. They requested as a remedy that the Order of the Review Officer be varied so as to increase their grade level from a grade 9 to a higher level. In the alternative, they requested that the Tribunal set aside the Respondent's pay equity plan of June 1990 and the amendedplan of April 1991, and order that the ReviewOfficer,withthe assistanceofapay equity expert, prepare a pay equity plan for the establishment at the Respondent's expense. They also requested an order that the Respondent pay all costs, in particular the costs of experts, incurred by the Applicants in this hearing.
2 In file 0225-91, LCBO applied for a hearing, claiming that the evaluation of the Respondent's position (Gail R. Wells et al) conducted by the review officer was flawed and resulted in an incorrect assessment ofthevalueoftheirposition. The Applicant also alleged that the plan as amended by the Review Officer's Order would be inconsistent with sections 6 and 7 of the Pay Equity Act, 1987 ("the Act"). They requested as a remedy that the Order be quashed and that the plan be restored to its original state.
3 In file 0237-91, the Applicant, Joyce McConnell, claimed that the LCBO had failed to establish compensation practices that provide for pay equity by undervaluing her work in both the posted plan of June 1990 and the amended plan of April 1991. She claimed that the Respondent had chosen an inappropriatemalecomparatorandadoptedagender-biasedcomparisonsystem. The remedy sought was to amend the LCBO's plan so as to increase her grade level from a grade 7 to a higher level. In the alternative,the Applicant asked thatthe Tribunal set asidethe Respondent'spayequityplans ofJune 1990 and April1991, and orderthat the review officer, withthe assistanceofa payequityexpert,prepare apay equity plan for the establishment at the Respondent's expense and that the Respondent pay all costs, including the cost of experts incurred by the Applicant in this hearing.
4 At the pre-hearing held on July 5, 1991, the parties agreed not to argue that anyoftheotherparties had failed in the pleadings to make out a prima facie case as had been previously alleged. In fact, the parties were able to complete responses to each other's applications. The parties also agreed that the gender neutrality of the Employer's comparison system was no longer an issue.
- These files have all come via subsection 16(4)3 of the Act:
If the plan does not relate to a bargaining unit and a review officer has made an order under subsection 2, the employer or any employee or group of employees to whom the plan applies may file an objection.
5 Subsection 17(1) requires that the Tribunal hold a hearing when it receives a notice of objection under section 16 and, in its decision, shall settle the pay equity plan to which the objection relates
6 At the beginning of the hearing in the above files, the panel on its own motion raised the question as to whether any of the Applicants had demonstrated a prima facie case in their pleadings.
7 Counsel for both the LCBO and for Gail Wells et al agreed with the Tribunal's decision in Peterborough (1991),2P.E.R.86 that itmustdecidewhether"theApplicanthasmadeoutacaseonthe face of the written material filed at the application". The decision also stated that "there are times when the Applicant may make out a case which could be rectified by the Tribunal, but does not provide sufficient information for the Respondent to answer the case fully; then the Tribunal might order the Applicant to provide further particulars about the circumstances underlying its claim."
- LCBO also pointed out that in Peterborough the Tribunal found in paragraph 19 that
In determining whether the applicant has made out a prima facie case, the Tribunal will look at the effect of the application as a whole. It will not require an Applicant to use "technical" or "legal" language, but will look at the sense of the language used by the applicant. The fact than an Applicant raises a "novel" point will not result in dismissal. The Tribunalmust also distinguishbetween those cases inwhichfurther particulars are required and those situations to which there is no case at all. It will only dismiss a case without a hearingonthe meritswhenitis"plainand obvious"thata hearingon the merits cannot lead to a result contemplated by the legislation.
8 We agree with the Peterborough decision. Although the pleadings in these files may be sparse, the majority do not find it "plain and obvious" that there is no prima facie case in any of these applications. For instance,infile0223-91,theApplicantsstatedthatthe Employerhadbeeninconsistent inthe collection of job information, which resulted in the wrong comparator chosen for their job. In file 0225-91, the Applicant stated that the Review Officer had no information about the job band in which he placed the Respondents' positions; this resulted in the Review Officer evaluating the female job at too high a level. In file0237-91,theApplicantclaimedthatherpositionwascomparedtothewrongcomparator. We believe thatthesegobeyondbald allegations. In each of these instances, theclaims,ifproven,couldberemedied by the Tribunal.
9 A further consideration that the Tribunal found persuasive was the argument by Counsel for Gail R. Wells et al that non-union applicants have little access to information about their employer's pay equity plan. It would therefore be likely that their pleadings would require further particulars which could only be prepared if the Tribunal ordered disclosure by the Employer. We believe that review officers, who have broad investigative powers under the Act, includingthe abilitytorequest the productionofdocuments,and to question persons on relevant matters, can be helpfulto bothemployersand employeesduringallstages of the process.
10 The Tribunal, in acknowledgement that it is in the early stages of its jurisprudence, has not been stringent withthe pleadings. We believe that the potential problem of access to information is further reason to allow a degree of flexibility.
11 We find that each of the Applicants has established a prima facie case. We grant the parties leave to provide such further particulars as are necessary in accordance with Rule 1.03 and Rule 2.04 of the Tribunal's Rules of Practice. We request that the parties attend a second pre-hearing to address the need
for further particulars and for disclosure. In accordance with the above we adjourn the scheduled hearing dates of October 15, 16, 17, 1991. We direct the Registrar to contact the parties and schedule a pre-hearing on one of those days. Should any issue related to particulars or to disclosure remain outstanding, the panel will deal with them at the resumption of the hearing.
DECISION OF PATRICIA HUGHES, ALTERNATE CHAIR, OCTOBER 10, 1991
1None of these applications establishes a prima facie case. Each applicationrequeststhatwe settle the payequityplanina specific way, yetgivesus no information which, if true, would enable us to dothat. When I ask, for each application, “if I assume all the facts set out by the applicant are true, am I able to settle the plan in the manner requested by the applicant?”, I am forced to answer "no".
2In reaching this conclusion, I am guided by the strictures outlined by the Tribunal in Peterborough whichreflectthe lawinthis area:a caseshould bedismissedonthis basis onlyinthe clearestcircumstances; novelty should not in itself result in dismissal; and "technical" or statutory terminology is not necessary to establish a caseonthefaceofthe pleadings. Doubt should always be resolved in favour of the applicant.
3The thrust of Peterborough is that there must be a modicum of reality to any application. This is a general principle of law with a commonsense basis. The Tribunal was not established to listen to speculation, whether it comes in the form of a complaint or an objection. Nor was it established as a way of applicants obtaining information to decide whether they really have a case or not.
4I refer particularly to the application by theWellsgrouptoexplainmydifficulty. It objects to the pay equity plan as amended by the Review Officer's order, as well as to the original plan established by the LCBO, on the basis that the work of the Business Systems Analyst IV, the job class to which the Wells group belong, has been undervalued. (The gender neutrality of the plan is no longer in issue; even if it were, however, my conclusions would be the same sincethe applicationdoes notaddress whatiswrongwiththe comparisonsystem.) I note that the LCBO's evaluation of the BSA IV job class has been superseded by that of the Review Officer who raised its grade level. The application, however, deals only with the LCBO and says nothing about the new and current valuation.
5The allegation of undervaluation of work is an appropriate one to ground an objection under subsection 16(4) of the Act. An allegation must eventually be proved, however. The way in which the applicant intends to prove it is revealed by the "material facts" set out in the application. In this case, the kind of material facts necessary would relate to the actual job class and its rating. But the material facts actually pleaded relate only to the process by which the LCBO did its evaluation. While one may be interested in how a job class came to be undervalued, that issue is secondary to whether or in what way ithasbeenundervalued. Those are the questions which must be answered before the plan can be settled in the applicants' favour. Yet the application does not deal with these significant questions at all.
- Nevertheless, the majority evidently believe that they would be able to conclude from what they have been told in the application that either the LCBO or the Review Officer had in fact undervalued the work performed by the BSA IV job class; they must also believe thattheycould increase the grade level of the
BSA IV job class. I do not know how they could do this on the basis of the application. Before I - and I assume anyone else - can decide whether a valuation or "rating" is correct or appropriate, I require informationaboutthe work performed by the job class in issue. I need to have someidea,atleast,about how it was inappropriately evaluated. For example, were some functions not included? were certain functions rated too low? was the wrong interpretation placed on a particular skill or responsibility?
6The Wells group's application provides noinformationwhatsoeverabouttheworkperformedbythe BSA IV job class or about what was missed by the evaluation of the job class by either the LCBO, assumingthatisstillrelevant,orbytheReviewOfficer. There are no factspleadedwhichcouldsustainthe allegation.
7Similarly, the LCBO's application provides no basis on which I could conclude that the evaluation of the BSA IV job class in the amended plan is in fact inappropriate. There are no facts pleaded about the way in which the rating is inappropriate, just about why we are to conclude that it "must" be.
8Joyce McConnell simply took the Wells group's application and modified it for her own circumstances. Her own job class, Manager-Payroll, was not explicitly part of the Review Officer's assessment of the plan because she did not object to the Commission until after the Review Officer had amended the plan as a result of the application by the Wells group under subsection 15(7) of the Act. Nevertheless,sheobjectstotheevaluationofherjobintheamendedplan,aswellasbytheLCBO. I have the same difficulty with the lack of relevant information in her application as I do with the Wells group's application.
9I comment in passing that unfortunately, there was not an opportunity for Ms. McConnell to use Review Services to assist her in resolving her concerns because she failed to make an original objection; she merely took advantage of being an "employee to whom the plan applies"tomakeherobjectiontothe amended plan (which she does not allege actually affected the evaluation of her job class).
10My conclusions have been made against the backdrop of the legislation. Nowhere does theAct give the Tribunal a general monitoring role. It is not too much to expect, therefore, that if an employee or the employerwishesthe Tribunaltolookata plan or amended plan, it should at least be able to communicate in a minimal way what is actually inappropriate about the plan. Joyce McConnell captured what I think is inessencethe underlyingreasonforherapplication:she said she hadno problems withthe plan as such but she wanted an expert to evaluate her job. She and, I believe, the Wells group want another evaluation; but they have not pointed to any actual problems with the existing valuation which might warrant any other valuation. I have to conclude, therefore, that they just want to see if someone else will give them a valuation they like better than the one or ones they have already received.
- I appreciate that the majority believe that the parties could benefit from another pre-hearing in order to focus their cases andexchangeinformationorparticularspriortotheresumptionofthehearing. It does not surprise me that they consider these applications in their present form to be deficient. On my view of these cases, of course, additional particulars or details about the facts set out in the applications will not help. All the information in the world about how the evaluation was done by the LCBO or the Review
Officer cannot help an adjudicator decide whether the evaluation is in fact appropriate or what way it is inappropriate. And those would be the only particulars appropriately added to these pleadings.
11I am sure, however, that since the majority have concluded that each of the applications establishes a prima facie case in its current form, theydo notenvisionthesepartiescomingforwardwithentirely new cases, thereby avoiding the ramifications of the 30 daylimitation period in subsection 16(4) of the Act. I am sure that the pre-hearing opportunity is not intended to ignore the prima facie rule which the majority and I agree applies to objections filed under subsection 16(4).
12I am concerned that the majority's decision will lead employees or employers to think the Tribunal willinquireintounsubstantiated dissatisfactionor disappointment withthe resultsofthe payequityprocess. I am concerned that employees will believe that the Tribunal will allow them to file objections just for the purposeofobtaininginformationfromtheemployer. If that is so, we are doing a disservice to all those who are affected by the legislation and our proceedings. We have an obligation to respect the scheme of the legislationand to considerverycarefullythe ramifications ofour decisions on the efficacy of the pay equity process for all employees. Equally important, we do no one a favour by giving false hope about the nature of the assistance we are able to provide.
13I would therefore have dismissed eachof these applications on the basis that it has not established a prima facie case.