Ontario Nurses' Association v. Regional Municipality of Haldimand-Norfolk, 1992 CanLII 4705

Pay Equity Hearings Tribunal

0001-89 Ontario Nurses' Association, Applicant v. Regional Municipality of Haldimand-Norfolk, Respondent

Before: Janis Sarra, Vice-Chair; Sharon Laing and Geri Sheedy, Members

Appearances: Mary Cornish for the Applicant; Paul Wearing, Keith Richardson for the Respondent

Cite As: Haldimand-Norfolk (No. 7) (1992), 3 P.E.R. 10

Contempt

The Tribunal declined to state a case for contempt at this time. The Tribunal considered that the reconsiderationand variationofthe originalorder adequatelyremediedthe breachofthe originalorderand that the Regional Municipality should be given an opportunity to comply with the varied order.

Reconsideration

The Tribunal determined that this was an appropriate case in which to reconsider and vary its earlier decision. In view of the Regional Municipality's failure to comply with the order and its admission before theTribunalthatithad no intention of bargainig with ONA the order was no longer appropriate. Tovary the order recognised the need to implement pay equity as expeditiously as possible. The Tribunal refused to order the use of ONA's proposed comparision system as its gender neutrality had not been subject to scrutiny by the Tribunal however it did accept the ONA system as a good starting point subject to pilot testing and any appropriate modifications being made. A Review Officer was ordered to prepare the pay equity plan.

Remedies - Costs

The Tribunal refused to order the Regional Municipality to pay ONA's costs in developing its proposed system as these were costs ONA would have incurred in any event. The Tribunaldid order the Regional Municipality to pay the costs of pre-testing the ONA system necessitated by the Regional Municipality's refusalto co-operate inpre-testing. AscompensationforONA's loss of its opportunityto negotiatea plan amajorityofthe Tribunalordered the RegionalMunicipalityto paythe Review Officer's costs in preparing the plan. The Tribunal refused to order the Regional Municipality to pay ONA's legal costs.

Outrage au Tribunal

Le Tribunal a refusé d'exposer une cause pour outrage à ce stade. Le Tribunal a considéré que le réexamen et la modification de l'ordonnance originale suffisaient pour remédier à l'inexécution de l'ordonnance originale et que l'on devrait donner à la municipalité régionale la possibilité de se conformer à l'ordonnance modifiée.

Réexamen

Le Tribunala déterminé qu'il s'agissait d'une cause où il convenait de réexamineretdemodifierladécision qu'il avait prise plus tôt. Étant donné que la municipalité régionale ne s'était pas conformée à l'ordonnance etavait admis devant le Tribunal qu'elle n'avait pasl'intentionde négocieravecl'Association, l'ordonnance n'était plus appropriée. Modifier l'ordonnance revenait à reconnaître le besoin de mettre en application l'équité salariale aussi rapidement que possible. Le Tribunal a refusé d' ordonner l'utilisation du système de comparaison de l'Associationproposé, car soncaractère nonsexisten'avait pas été soumis à l'examen du Tribunal, bien que celui-ci ait accepté que le système de l'Association était un bon point de départ, à condition de le mettre à l'épreuve et de procéder à toute modification appropriée. Le Tribunal a donné l'ordre à un agent de révision de préparer le plan d'équité salariale.

Rémedes - Dépens

Le Tribunala refuséd'ordonnerà lamunicipalitérégionalede payerlesfrais engagéspar l'Associationpour mettre au point son système proposé, puisqu' il s'agissait de frais que l'Associationaurait engagés en tout cas. Le Tribunal a cependant ordonné à la municipalité régionale de payer les frais de l'essai préalable du système de l'Association rendu nécessaire par le refus de la municipalité régionale de collaborer à l'essai préalable. En contre-partie de l'occasion manquée par l'Association de négocier un plan, la majorité du Tribunal a ordonné à la municipalité régionale de payer les frais engagés par l'agent de révision pour la préparationduplan. Le Tribunal a refusé d'ordonner à la municipalité régionale de payer les frais de justice de l'Association.

DECISION OF JANIS SARRA, VICE CHAIR AND MEMBER GERI SHEEDY, MAY 19, 1992

1This is an applicationbytheOntarioNurses'Association("ONA"orthe"Union")askingtheTribunal to reconsider its decision dated May 29, 1991 ("the Decision") and seeking extensive remedies for the failure of the Respondent, the Regional Municipality of Haldimand-Norfolk (the "Municipality" or the "Employer") to comply with the order contained in that decision. The Employer admits non-compliance.

2There was a further complaint by ONA under section 9 of the Pay Equity Act, R.S.O. 1990, c. P.7 ("the Act") alleging reprisals against members in these bargaining units by the Employer because of the Union's efforts to pursue its rights under the Act. After questioning by the panel at the hearing, ONA agreed to withdraw this complaint until such time as Review Services could deal with the matter.

3There are three questions before the Tribunal. First, should the Tribunal reconsider and vary the Decision? Second, should the Tribunal state a case to the Court under section 13 of the Statutory Powers Procedures Act, R.S.O.1990,c.S.21? Finally, shouldtheTribunalawardlegalcostsandcompensatory damages in the nature of a "make whole" order?

4. The Decision was the result of extensive litigation by the parties, which required approximately 60 days of hearing. TheTribunalheldthattheEmployerhad failed to bargain in good faith and endeavour to

agree upon a gender neutral comparison system and pay equity plan contrary to section 14 of the Pay Equity Act. In particular, we found that the Employer had failed to disclose information on the pilot tests, computer program, and weights embedded in the questionnaire; had failed to recognize the bargaining agent; had failedto engage ina fulland informeddiscussion; and found that the system it proposed did not meet the standards of gender neutrality required by the Act in that it did not accurately capture and thus did not value the content ofthe skill, effort,responsibilityand working conditions of the female job classes in these bargaining units.

4The Decision ordered the Employer to negotiate in good faith; ordered both the Union and the Employer to table and negotiate a proposed comparison system of their own choosing within 60 days, including justification of its applicability to this workplace, and an explanation of what reasonable efforts it has made to ensure the system is gender neutral. We ordered the parties to co-operate to pretest the proposed comparison systems, and we ordered disclosure on both testing results and other components of the proposed systems.

5ONA asked for a hearing before the Tribunal alleging that the Employer had failed to comply with the Decision. The Tribunal convened a hearing on February 6 and 12, 1992 with respect to these matters. Counsel for the Employer confirmed that the Employer had not complied with the order contained in the Decisionand introducedMr. KeithRichardson, Chair of the RegionalMunicipalityofHaldimand Norfolk. Mr. Richardson read a statement to the Tribunal on behalf of the Regional Council of the Municipality of Haldimand Norfolk. Mr. Richardson informed the Tribunal that the Municipality had failed to comply with the order primarily for financialreasons. The Municipality claimed that it was without the financial resources to retain consultants to draft a bargaining proposal for a comparison system, and that it lacked the staff expertise to assess the comparison system proposed by ONA.

6The Employer also relied upon the refusal of the provincial government to further fund costs related to continuation of the pay equity process. As support for this submission, it filed a letter to the Premier documenting the Municipality's reimbursement claim in which it sought to have the provincial government pay for more of the $1,308,452.00 in costs for these proceedings of which the government has already contributed $343,668.00. The Employer informed the Tribunal, however, that it had set aside one per cent of payroll for implementation of any pay equity adjustments required. The Employer also stated that it could no longer afford to hire its counsel and that it was withdrawing its participation at the hearing. The Employer and its Counsel left the hearing.

7The Applicant requests as relief, a declaration that the Municipality has violated the terms of the Decision in flagrant contempt of the Tribunal, and a declaration that the Municipality has violated the Act and particularly sections 4, 5, 6(1), 7, 12, 13 and 14, by its failure to bargain in good faith and endeavour to negotiate a gender neutral comparison system and pay equity plan. It asks the Tribunal to state a case to the Divisional Court pursuant to section 13 of the Statutory Powers Procedures Act, to take what stepsare necessaryfor the punishment of the Municipality, its responsible senior membersofstaffand the Regional Council members.

8ONA also seeks to have the Decision varied to order that its proposed comparison system, as modified through pilot testing, be used as the genderneutralcomparison system and form the basis of the pay equity plan for ONA's members employed by the Municipality. It asks that the Employer not be entitled to proposeornegotiateitsowncomparisonsysteminlightofits unlawful conduct. It asks that the Tribunal direct a review officer, as its agent, to prepare the pay equity plan using ONA's system and to direct the review officer to retain Dr. Ronnie Steinberg to direct the testing, revision and implementation of the gender neutral comparison systemandpayequityplan. It seeks disclosure and co-operation by the Employer,and alsorequeststhatthe regionalemployeesparticipateinthedevelopmentandimplementation of the gender neutral comparison system and pay equity plan.

9ONA also seeks an order that the Employer pay all of the expenses of the preparation and implementation of ONA's proposed comparison system and the payequity plan for its nurse members in this workplace, including the necessary and reasonable costs of the Union in developing the plan back to June 1991. It also seeks an order that the Employer pay the legal costs incurred by ONA to enforce the Decision.

Reconsideration

11. The Tribunal's jurisdiction to reconsider is found in section 30 of the Act which provides:

30(2) The Hearings Tribunal may at any time, if it considers it advisable to do so, reconsider a decision or order made by it and vary or revoke the decision or order.

In Riverdale Hospital (No. 2) (1991), 2 P.E.R. 8, the Tribunal held that given the need for certainty and finality in decision making, generally it will not reconsider its decisions except where there are compelling and extraordinary circumstances. In Women's College Hospital (No. 2) (1990), 1 P.E.R. 178, the Tribunal, in discussing in what "exceptional circumstances" it might reconsider a decision, held that one factor was whether there had been a change in circumstances since the decision such that it should not stand. The Union's request for reconsideration is of this vintage. It submits that events subsequent to the Decision make the remedy ordered inappropriate. The Union asks the Tribunal to vary the Decision to recognize the Employer's failure to comply with the Tribunal's order and its continuing violation of the bargaining obligations under the Act.

12. Should we exercise our jurisdiction to reconsider and vary the Decision? In this case, we find it helpfulto looktothe Labour Board's jurisprudence toassess inwhatcircumstanceswemightexerciseour discretiontoreconsiderourDecision. In Culverhouse Foods Incorporated [1978] OLRB Rep. March 219, the Labour Board held, at paragraph 12, that:

whereevents subsequent to the making of a remedialorder bythe Board showthatorder to be clearly inappropriate, the Board may use its jurisdiction to reconsider in order to rectify an unforeseen problem.

In that case, when the Employer's non-compliance with the Board's order resulted in the employees not being reinstated for an additionaleight monthperiod, the Board varied the order to rectify the unforeseen problem. [see also: Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. Sept. 549]

1 The principle enunciated in Culverhouse is pertinent to our consideration of these matters. The Tribunal's discretion to reconsider itsdecisions pursuant tosubsection30(2) ofthe Act is unqualified. The questionis,is this an appropriate case in whichtoexerciseourdiscretiontovarytheoriginalorder? In this case, the Tribunal found in its DecisionthattheEmployerhad failed to negotiate in good faith. Given that the precise parameters of the bargaining obligations under the Act had not previously been set out by the Tribunal, the appropriateremedyatthe time was to direct both parties to return topayequitynegotiations with a view to the Employer meeting its obligation to negotiate in goodfaithand endeavour to agree upon a gender neutral comparison system and a pay equity plan.

2 With respecttothenegotiationswhichthepartieswereorderedtoconduct,itishelpfultonote what transpired. The parties agreed on the following facts in the documents they filed with the Tribunal: ONA wrote to the Respondent on June 14, 1991 to arrange a negotiation session to meet the 60 day time limit orderedbytheTribunal;itreceivednoresponsetothatrequest. On June 24, 1991, ONA again contacted the Employer,and onJuly4,1991 wasadvisedthatthe Employer would be prepared to meetforone day onJuly23,1991. At 4:50 p.m. on July 22, 1991, the Employer cancelled the session, and advised ONA it was unable to disclose the reason. ONA then proposed four dates in August for negotiations, and the Employer agreed to August 29 or 30, 1991. On August 28, ONA received a letter from the Employer cancelling the August 29 and 30 dates. The Employer then advised ONA that it was willing to arrange the pilot testing ONAhadrequested. During the month of September, ONA tried to contact the person that the Employer had designated as responsible for arranging the date of the testing, and as of October 7, 1991, the Employer had not responded to ONA request for a date to pilot test. ONA contacted the Employer again in October requesting to negotiate, and was without success. On November 12, 1991 ONA faxed a further request to pilot test and on November 29, 1991 was told that the Employer's calendar was too full until after the new year and thus it would not be able to confirm any dates for pilot testing. The Employer then agreed to a pilot test date in mid-December. On December 3, 1991, the Employer contacted ONA and said the situation had changed and the dates were cancelled.

3 ONA documented other attempts to comply with the Tribunal's order to negotiate. We find it is unnecessary to examine these further, because the facts outlined above, as agreed to by the parties, are sufficient to verify that considerable efforts were made by ONA to bring the Employer to the bargaining table. Since the Decision, the Employer, by its own admission, has not complied with any part of the order, except partial disclosure of information relating to male job classes. It has never tabled or negotiated a proposed comparison system of its choosing. On the day before the negotiation sessions of July 23 and August 29, 1991, the Employer cancelled the meetings. It has continued to refuse to respond to initiatives of the Union to come to the bargaining table, and has continually refused to negotiate on the basis of the ONA proposed oranyothercomparisonsystem. The Employer has also failed to comply with the order to co-operate inthe pretestingofthe proposed comparisonsystem, and has foreclosed all efforts of ONA to arrange this pilot testing.

4 In contrast, we find that ONA did make reasonable efforts to comply with the Tribunal's order of May 29, 1991. The designers of the ONA proposed system met eight to ten times from June 24 to July 22, 1991 in an effort to meet the deadline set by the Tribunal, representing roughly 200 person hours in designing the system. Ms. Wilkey traced the development of the system, the orderofdecision making in these sessions, and the resulting decisions on factors, design and language made in response to the Tribunal's decision. ONA's proposed comparison system was designed and ready to table to the Employer within the 60 days ordered by the Tribunal. It contacted the Employer on a number of occasions to set up negotiation sessions, as noted above. In preparation for the bargaining session set for July 23, ONA conducted a training session for its negotiators with a view to ensuring those at the bargaining table were able to negotiate on an informed basis, as setout bythe Tribunalinitsfindings onthe obligationto bargain. Although the Employer would not negotiate, ONA still forwarded the proposed comparison system and asked the Employer to review and comment. The Employer chose not to respond. ONA also designed apilottestprotocolwhichoutlinedtheidentificationofpossible male jobclassestobe compared, the timing and procedures to be employed in pilot testing, proposed briefing sessions and follow up.

5 Given that in the ten months since the Decision, the Employer has not complied with the order to negotiateingoodfaith, and the Employer'sstatement thatthe Municipalityhasnotcomplied,weaccept the Applicant'ssubmissions thatthe remedyoriginallyorderedisno longerappropriateinthesecircumstances. Our original order was crafted to allow the parties to fulfill their bargaining obligations once the Tribunal hadclarifiedtheir responsibilities,and directionwasgivenwithrespectto the essentialelementsofa gender neutralcomparisonsystem. The order was formulated with a view that it makes both pay equity and good labour relations sense for parties to fashion their own pay equity plan.

6 The events subsequent to the Decision have made it clear that the order is no longer appropriate. In our Decision, we found the EmployerhadnotcompliedwithPartIIofthe Act. The Employer admitted at the hearing that it has still not complied with its obligations under Part II. It is now two years after the mandatory posting date and the date at which the first pay equity adjustments, if required, were to have been made. The failure to comply with our order to negotiate in good faith is clearly an unforeseen circumstance. The Employer has admitted that it has no intention to bargain at this time, nor the ability to assessONA'sproposed system. The Employer has not suggested that the order is inanywayunclearor ambiguous. It has not given any reasonable excuse for its failure to come to the negotiating table. We do not find that the Employer can use financial reasons as an excuse to by-pass its statutory obligation to negotiate with the Union or to ensure that it meets its obligations under the Act. The events subsequent to the Decision, make it an appropriate case for the Tribunal to vary its order in recognition both that the mandatory posting date has long passed, and that it is no longer a viable remedy for the Union to have to negotiate with an unwilling employer.

7 Thus the Tribunal must determine how the order might be varied to remain in keeping with the intention of the Decision, while giving recognition to the events which have transpired subsequent to that time. The goal is to ensure that pay equity is implemented for the nurses in these bargaining units. In our view, the net result of the Employer's continued failure to bargain, is that it should no longer be given the opportunity to propose and negotiate its own system. Our varied order must recognize the need to implementapayequityplanasexpeditiouslyaspossible. However, in assessing which comparison system

to order, wenotethatthe ONAcomparisonsystemhas notbeensubjectedto the scrutinyofthe standards under the Act, and the Tribunal finds it is unnecessary to adjudicate on its gender neutrality at this time. ONA itself admits that the proposed comparison system cannot be fully developed until such time as it is able to pilot test the system and modify it to include more information on the job content of possible male comparators.

Should the Tribunal order ONA's comparison system?

1 We asked theApplicantforevidenceonwhyONA'sproposedcomparisonsystemshouldbe used as the basis for a gender neutral comparison system. The Applicant led evidence through Ms. Cynthia Wilkey, a lawyer with experience in pay equity litigation and in legal consultationto clientsona numberof comparison systems. Ms. Wilkey was retained by ONA after the Tribunal's Decision. She assisted Dr. Ronnie Steinberg and Mr. Lawrence Walters, the system's designers, by providing an analysis of the Decision, and an ongoing assessment of the system's ability to reflect the findings in the Decision with respect to what constitutes a gender neutral comparison system. ONA also retained the services of Dr. Ronnie Steinberg to design the ONA comparison system for proposed use in Haldimand-Norfolk. Dr. Steinberg has previously beenrecognizedas an expert by this Tribunal and gave expert opinion evidence in Women's College Hospital case now pending.

2 The evidence led at the hearing documents the development of the proposed comparison system. After the Decision was released, Ms. Wilkey prepared a comprehensive analysis of it, including an assessment of the legal standards set by the Tribunal, the component requirements set out by the Tribunal, and how these findings related to the findings of fact made by the Tribunal. This analysis was used as a guide to the system's designers in their efforts to comply with the Tribunal's order. The next step was a seriesofworkingsessions,inpreparationfor which a series of binders were compiled, organized in terms of the Tribunal's findings with respect to factors. Ms. Wilkey, Dr. Steinberg and Mr. Walters then proceeded to review the transcripts of the hearing and the exhibits in conjunction with excerpts from the decision.

3 Ms. Wilkey's evidence confirmed that the general criteria used by the designers of the ONA comparison system were those outlined in the Decision. ONA considered the need for accurate and completecollectionofjob information, includingdeterminationofhowthe informationwillbe collected,the need to ensure that the job information collection methodology covers the range of work of the members of these bargaining units and their potentialmale comparators; the need to make nursing work visible and to capturethe statutorycriteria ofskill, effort, responsibilityand workingconditions ofboththe female jobs and the male jobs to be compared; as well as trying to design a methodology which ensures that the job information is collected accurately and consistently. Ms. Wilkey's evidence also confirmed that ONA attemptedtoreflectthe Tribunal'sfindings withrespect to incorporatingappropriatevaluationofjobcontent information in the design of factors and sub-factors to meet the statutory criteria and the need to be free from gender bias.

23. The designers used the evidence given to the Tribunal as a source of nursing job content information. ONA developed a computerized database of the transcripts of the hearing, and undertook field searches

of all evidence relating to the content of nursing work. The designers gathered first hand information by organizing a focus group session with nurses employed by the Municipality. With respect to the requirement to accuratelycollectthe job informationofthepotentialmale comparators,inJune 1991 ONA requested from the Employer, all available job information on a list of male job classes which it identified as potential male comparators. When the Employer did not fully disclose the requested information, ONA had to rely upon the Employer's evidence at the original hearing. It also consolidated all the information that the Employer had disclosed in job descriptions. ONA acknowledges that further information is required through the pilot testing procedure in order to modify the system to accurately collect the job content of potential comparators.

4 Ms. Wilkey also testified thatinadditiontobasing the development of the system on the Tribunal's findings,the designersalsocollectedand assessed othercomparison systems, the Pay EquityCommission materials, social science research regarding the hidden aspects of women's work in assessing value, and utilized the knowledge and experience of the designers themselves. Prior to finalizing Version 1 of the ONA system, it was also reviewed by three recognizedexperts,HelenRemick,Lois Haignere and Linda Ames, whose comments were used to make further modifications to the factor definitions and the questionnaire.

5 Based upon the above facts, we find that ONA made reasonable efforts to ensure that the proposed system it tabled was as gender neutral as possible without the full disclosure and pretesting. We find therefore,thatONA'sproposedcomparisonsystemassetoutinvolume11,tabs3, 4,5,isanappropriate basis uponwhichto proceed to modifyand assess the comparison system and commence to design apay equity plan.

6 The Tribunal's concern at this point is to ensure that a pay equity plan is implemented for the employees in these bargaining units assoonaspossible. We find that this is an appropriate case in which to direct a review officer to prepare a pay equity plan. Subsection 25(2)(a) provides that the Tribunal;

where it finds thatanemployeror a bargainingagent hasfailedto complywithPartII, may order that a review officer prepare a pay equity plan for the employer's establishment and that the employer and the bargaining agent, if any, or either of them, pay all the costs of preparing the plan;

Subsection 25(2)(a) is part of the Tribunal's remedial authority. Essentially it has two components, first, itisdirectoryinensuringaplanisprepared. Second, it addresses the allocationofcostofthepreparation, an issue we will address in our discussion of compensatory damages. The first component of subsection 25(2)(a)providesthatwherethe Tribunalfinds an employer or bargaining agent has failed to comply with Part II of the Act, the Tribunal may order an officer to prepare a pay equity plan. It is directory in that it is designed to allow the Tribunal to meet the objectives of the Act to achieve pay equity, by directing a review officer to prepare and post a pay equity plan expeditiously. In this case, we recognize the need to put a pay equity plan in place. It is now more than two years after the mandatory posting date and the EmployerhasnotcompliedwithPart II of the Act. In our view, subsection 25(2)(a) is crafted for just such circumstances, and we are ordering the officer to prepare a pay equity plan for the nurses in this establishment. In light of the evidence that ONA led with respect to its proposed gender neutral comparison system, the Tribunal finds that it is appropriate for the review officer to commence with this system. Given that ONA did not have access to sufficient information on the male job classes, we are orderingthatthe reviewofficerpilottestthe comparisonsystemusingthe servicesofthesystem'sdesigners. We are then directingthe reviewofficerto consult withONAtomakeappropriatemodifications following the testing. The review officer will then be able to proceed to assess the modified comparison system for its gender neutrality and its appropriateness for these bargaining units. Finally, the officer will prepare the pay equity plan for the ONA nurses in this establishment.

1 The Applicant asks that the review officer act as agent for the Tribunal in preparing the pay equity plan. We do not find that this is appropriate. Subsection 25(4)(c) provides that, in preparing a plan under this section, the officer shall perform the duties of the employer and the bargaining agent. Subsection 25(4)(d) providesthatonceanofficerhas prepared a plan, the parties shall be given an opportunityto file an objection to the Tribunal. In our view, the Act provides a structure for the preparation and posting of a plan by a review officer. It allows the review officer discretion in preparing the plan. For example, although there is nothing to preclude the officer from using the services of Dr. Steinberg in the final design and implementation of the pay equity plan, once the Tribunal makes an order under subsections 25(2)(a) and 25(3) allowing the officer to use the services of an expert to assist with preparation ofthe pay equity plan, the officer has the discretion to retain the services of any experts she or he considers necessary. It is also a recognition that the bargaining process is no longer appropriate, since subsection 25(4)(c) essentiallyallowstheofficertofilltheshoesofboththeemployerand the bargainingagent. Any objections that the parties have to the posted plan may then be brought to the Tribunal under subsection 25(4)(d).

2 Given this scheme of the Act, it would be inappropriate for the Tribunal to order anofficertoact as its agent in the context of preparing a plan. This would hamper the discretion of the officer, as well as removing an impartial adjudicative mechanism, should the parties have an objection to the final outcome. While we can appreciate that ONA is concerned with the timeliness of the preparation of the plan, we believe our role at this juncture is to render a decision on any process delays that the officer is unable to resolve, and to be available as a final dispute resolution mechanism, should this be required.

Contempt Proceedings

29. ONA also asks the Tribunal to state a case to the Divisional Court under section 13 of the Statutory Powers ProceduresAct to find the Employerincontemptforitsfailuretocomplywiththe ordercontained in the Decision. The Tribunal is concerned that its orders be complied with. The Tribunal issued its Decision with a series of remedies which were intended to move the parties forward in meeting their pay equity obligations. In this decision, the Tribunal has varied that order and set out new remediesinlightof the failure of the Employer to comply with the original order. We are confident that these remedies will adequately remedy the breach and ensure that a pay equity plan is implemented in this workplace for the members of ONA's bargaining units. The Employer should be given the opportunity to comply with the varied order. Therefore we will not decide the questionof section 13 and we decline at this time to state a case for contempt. We note that ONA has filed a certified copy of the Decision with the Registrar of the SupremeCourtofOntario pursuant to subsection19(1) ofthe Statutory Powers Procedures Act and that the Employer acknowledged that the filed Decision was brought to its attention.

Compensatory Damages

1 ONA also seeks a variety of compensatory damages. Specifically, it asks the Tribunal to order the Employer to pay for the costs of preparation of its comparison system back to June of 1991 when it commenced design of the system. ONA also asks for the expenses incurred and lost as a result of the Employer's failure to comply with the Decision, including the legal costs ofcomingback to the Tribunal in this application. It also asks that the Tribunal order the Employer to pay all the costs of the review officer's preparation of the pay equity plan.

2 This is the first case in which the Tribunal has received a request for compensatory damages and thus wemustexamine the precise nature and scope of our remedialauthorityoncethe Tribunalhasdecidedthe issues before it. The Tribunal's general remedial authorityisfoundinsubsection25(2)ofthe Act. It is this authoritywhichwe use to formulate directions to the parties to take appropriate steps to fulfilltheir statutory obligations. It is also the section which must be analyzed in determining whether our remedial authority includes compensatory damages. Subsection 25(2) provides:

The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,

(a) ....

(g) may orderapartytoaproceedingtotake such action or refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances.

Subsections (a) to (f) specify particular remedies in specific situations where the Tribunal finds a contravention. The question is whether the Tribunal's remedial power is limited to those specific directions, or whether the subsection 25(2)(g) allows the Tribunal to award compensatory damages in fashioning "make whole" orders. Second, in what circumstances will we make such orders?

32. In determining our jurisdiction to fashion a remedial order which includes compensatory damages, itishelpfulto lookto the jurisprudenceofthe Ontario Labour Relations Board, sincethe remediallanguage of its governing statute is almost identical. Subsection 89(4) (formerly ss. 79(4)) of the Labour Relations Act, R.S.O. 1990 c.L.2 specifies that the Board:

... shall determine what, if anything, the employer, employer's organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect theretoand suchdetermination, without limiting the generality ofthe foregoingmayinclude (followed by three specific provisions which include orders to cease an act, to rectify an act and to reinstate or hire a person)

It is helpful to examine how the Labour Board has interpreted this general remedial power. In Radio Shack, [1979] OLRB Rep.Dec.1220,theLabourBoard,innotingthatmonetaryreliefis compensatory, held at paragraph 97:

An order directing compensation for loss of earnings is not the only manner of awarding monetary relief under section 79 (now s.89). The language of section 79 provides the Board withthe broadest power to providereliefwithparagraph(a), (b) and (c) of section 79(4) being but illustrations of this broad power. This is made clear from the general direction of the section stating that the board 'shall determine what, if anything, [a party] shall do or refrain from doing with respect thereto' and from the subsequent introductory phrase to the specific powers 'without limiting the generality of the foregoing'.

33. In Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. June 309, the Labour Board, inresponsetoa union'srequestfordamagesarisingoutofa bargainingcontraventionunderthe Act, held at paragraph 60:

The essence of the argument was that the power to award damages must be conferred upon the Board by a specific provision of the Act. We do not consider the general remedial powers limited in such a way. The language of section 79 clearly provides the Board withthe broadestpower to providereliefwheretherehasbeenabreachofthe Act. The language of section 79 (4) (c) is intended to clear up any doubts about the Board's power to reinstate employees, aremedynot available at common law, and not to restrict the awarding of damages to this one situation. The power of an arbitrator to award damages inthe absence ofexpress statutoryprovisionhas had long standing approvalfrom the Supreme Court of Canada. See Polymer Corp. (1962), 1962 CanLII 3 (SCC), 33 D.L.R. (2d) 124. It would bestrange indeedifthe LabourBoarddid nothave atleastequalremedialauthority, where the language of the legislation so clearly provides for it.

2 In a subsequent case,Grey-Owen SoundHealthUnit, [1980] O.L.R.B. Rep. Feb. 223, the Board, infindingas breachinthe duty to bargain in good faith, awarded damagesinthe amount ofthe value oflost wages by reason of a lock-out and held at paragraph 25:

The power to fashion compensatory relief, in the nature of a make whole order, is expressly authorized by section 79 (4) of the Act, and is now firmly established in the Board's jurisprudence. Such make whole orders in appropriate circumstances, have included a trade union's organization costs or extraordinary organizing costs, wasted negotiationcostsandnecessarilyincurredlegalcostscausedbythe commissionofanunfair labour practice.

Similarly, in Academy of Medicine, [ 1977] OLRB Rep. Dec. 783 at paragraph 48, in finding that an employer's actions had thwarted a trade union's organizing drive, the Board ordered the Employer to reimburse the unionforallreasonable organizational, bargaining, legal and other expenses associated with its efforts to pursue its statutory rights.

35. This jurisdiction to award compensatory damages in the form of a "make whole" order has been confirmed by the Courts. In Tandy Electronics Ltd. and United Steelworkers of America and the Ontario Labour Relations Board (1980), 80 C.L.L.C. 14,017 at page 93, the Ontario High Court of Justice (Divisional Court) held:

It should be noted that cls. (a) to (c) do not detract from the wide powers given to the Board by s. 79 (4) for those clauses are preceded by the words "without limiting the generality of the foregoing ". So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope,intent and provisions ofthe Actitself, then the award of damages is within the jurisdiction of the Board. The mere fact that the award of damages is novel, that the remedy is innovative, should not be a reason for finding it unreasonable.

2 The remedial language of the Pay Equity Act parallels that of the Labour Relations Act. Section 25 providestheTribunalwitha broadrange ofremedialpowers whenitfindsa contraventionofthe statute. We find that included in the authority under subsection 25(2) is the jurisdiction to award compensatory damages as part of "make whole orders". Any exercise of the authority should be compensatory, and should reflect the purpose and provisions of the Act. Clearly, as the Board said in Radio Shack, supra, all rights acquire substance only insofar as they are backed by effective remedies. The challenge to the Tribunal when it finds a breach, is to fashion a remedy which will assist the parties in fulfilling their obligations and give substance to rights granted under the Act. In National Bank of Canada v. Retail Clerks International Union, 1984 CanLII 2 (SCC), [1984] 1 R.C.S. 269 at 288, the Supreme Court of Canada held that there must be a relation between the unfair practice, its consequences and the remedy.

3 We find that is a helpful place to start. The Tribunal must decide, as a policy matter, when it is appropriate to exercise our jurisdiction to order compensatory damages in the form of a "make whole" order. The Tribunal finds the above cases assist us in formulating some starting principles. First, the remedy must flow from the scope and provisions of the Pay Equity Act. Second, we find that any exercise of our remedialauthoritymustbecompensatory,notpunitive. It must try to correcttheharmdonebythebreach of the statute. Third, any remedial order must flow from the consequences of the breach. Fourth, the Tribunal will consider the seriousness of the breach. For example, has bargaining has been so irreparably damaged that measures must be taken to rectify the situation? Has there been a loss of bargaining opportunity? Are the contraventions so serious that underlyingorextraordinarycostscannotbeignored? These are factors which the Tribunal has considered in this case, in deciding whether to fashion a make whole remedy. We note, however, that there may be other considerations specific to breaches of our governing statute which provide additional policy reasons for the exercise of our discretion to fashion a "make whole" order. These considerations may be articulated on a case by case basis as issues come beforeusanditis neither necessary or appropriatetodecidetheminthedispositionofthiscase. The issue before us is whether to grant ONA's request for compensatory damages as part of the make whole order to remedy the Employer's breach.

38. There are four components to ONA's request for compensatory damages and we will deal with each in turn. First, ONA has asked for costs of preparing the proposed comparison system prior to and up to

the date of the Employer's breach of the order. These expenses were incurred pursuant to our order directing ONA to table a proposed comparison system within 60 days, including a justification of its applicability to this workplace and an explanation of what reasonable efforts it has made to ensure the systemisgenderneutral. We find that these expenses would have been incurred by ONA with or without the Employer's breach. Therefore we do not find that they are recoverable.

4 Second, ONA seeks compensatory damages arising after the date of the breach, specifically 60 days after the Decision. ONA submitted that since the Employer refused to bargain and refused to co-operate in pretesting, ONA had to find other ways to reasonably ensure the gender neutrality of its proposed comparisonsystem. We find that as a consequence of the Employer's breach, ONA had to find alternative means of searching foraccuratejob content informationand initialpretesting, as wellasincurring expenses inpreparationoffurtherbargainingsessionsafterthedateofthebreach. We findthattheseexpenseswere incurred as a result of the breach and should be recoverable.

5 Third, the question is whether the Employer should be ordered to pay for the review officer's preparation of the pay equity plan. Subsection 25(2)(a) specifies that the Tribunal:

whereit finds that anemployeror a bargainingagent hasfailedto complywithPartII, may order that a review officer prepare a pay equity plan for the employer's establishment and that the employer or the bargaining agent, if any, or either of them, pay all the costs of preparing the plan

Inanorder undersubsection25(2)(a) of the Act, the Tribunal has the discretion to order the employer or the bargaining agent or both to pay all the costs of preparing the plan. In this case, the Employer failed to complywithPart IIand wemustdecidewhetherthis isanappropriatecaseinwhichto directthe Employer to pay for the preparation of the pay equity plan.

1 In considering whether to include the expense of preparation of the pay equity plan as part of the remedialorder,itisessentialto notethatbothofthesepartiesincurredconsiderable expensesatthe outset. The Employer hired the Mercerfirmwhich has an extensive history in job evaluation. The Employer paid for the expertise of a job evaluation specialist to providetechnicaland practical support in the design and modification of a proposed gender neutral comparison system for specific application to the Regional Municipality. ONA hired Dr. Ames, an expert in job evaluation questionnaire construction, validity and reliability testing procedures and comparison system as they relate to bias. Dr. Ames undertook a comprehensive analysis of thesystemwhenfirstproposedbytheEmployerandcontinuedtoadvise ONA on the proposed system and issues of gender bias. The Tribunal had no evidence as to precisely the expenses incurred prior to the case before the Tribunal, however, it is clear that both parties incurred considerable expenses for outsideexpertise,fromtheoutsetofnegotiations. We further note the Decision at paragraphs 123 and 133, that much of the information detailing the Employer's system was not developedbythe EmployerorONAduringnegotiations,but ratherforpurposes ofthe litigationbeforethe Tribunal, one year after negotiations reached an impasse.

2 In this case, in applying the considerations inNational Bank, supra, it is important to note that the actions which were a breach, were the failure to negotiate in good faith and the failure of the Employer's system tomeetthe standardsofgenderneutralityin the Act. As noted in the Decision, the Tribunal found that the Employer had violated sections 5, 7, 12 and 14 of the Act. The nature and scope of the breach of the statute was the subject of extensive consideration by the Tribunal in the Decision, and it is not necessary here to repeat those findings. What is important is that the remedy which we are ordering here, must flow from the consequencesoftheEmployer'sbreachofthestatute. In this case, the Employer failed to negotiateingoodfaith, failed to recognize the bargainingagent,failedtodiscloseinformationonthe pilot test, and failed to engage in full and informed discussion. Subsequent to the Tribunal's findings of these violations of the duty to bargain in good faith, the Employer continued to breach the statute by failing to meet its obligations to bargain. It also admits non-compliance with the Tribunal's order. The consequences of both the breach of the Act and non-compliance with the Tribunal's order is that ONA is unable to negotiate for a gender neutral comparison system and pay equity plan. It has been unable to pilot test its own proposed system and been unable to secure sufficient information on the male job classes to ensure the system's gender neutrality. The remedy which we have fashioned here flows directly from the violations we found in our Decision, taking into account the subsequent unforeseen events.

3 In these circumstances, is it fair and reasonable to have the Employer pay all the costs of preparation of the pay equity plan? In Radio Shack, supra, the Labour Board in discussing unfair labour practice remedies held at paragraph 93:

Itistritetosaythatallrightsacquiresubstanceonlyinsofarastheyare backed byeffective remedies. Labour law presents no exception to this proposition. An administrative tribunal with a substantialvolume of litigation before it faces a great temptation to develop "boiler plate" remedieswhichareeasytoapply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An important strength of administrative tribunals is their sensitivityto the real forces at play beneath the legal issuesbrought beforethemand thereisno greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable, they should take account of the economics and psychology permeating the situation atissue;and theyshould attemptto takeintoaccount the reasons forthe statutory violation. Remedies should also be sensitive to theinterestsofinnocentbystanders. This means then that the Board should try and tailor remedies to each particular case. It is equally true, however, that the Ontario Labour Relations Board cannot police the entire labour relations arena. As important as it is for this Board to safeguard the substantive rights it administers, ultimately, compliance with the Act depends on the vast majority of unions and employers according at least minimal respect to the legislation, the Board and the Board's directives. With its limited resources and the time that must be taken to adjudicate fairly issues of controversy, the Board must rely on the co-operation of employers and trade unions in the day to day administration of the Act. For this reason, the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible.

This provides a helpful guideline. In this case, we find that the Employer's breach of its obligation to negotiate in good faith and its continuing breachof the Tribunal's order has a further consequence or loss for ONA. One consequence of directing a review officer to prepare the plan for the employees in these bargaining units, because of the Employer's breach, is that not only does the Employer forfeit the right to negotiate the plan, but ONA also loses that right. Subsection 25(4)(c) states that the officer shall perform the duties of both the employer and the bargainingagentinpreparingtheplan. This is a loss of bargaining opportunity to craft a pay equity plan in which ONA could best represent the interests of its members in complying with the statute. In our view, we have given the fullest recognition to the extensive amount of work that ONA has undertaken in design of the comparison system by ordering the review officer to commence with the ONA modified system. We wish to make it clear that the Tribunal is not fettering the review officer's discretion to order what she or he thinks meets the requirements of the Act. Thus ONA now suffers the loss of any opportunity to negotiate a pay equity plan because of the Employer's breach. In our view, subsection 25(2)(a) is crafted with precisely such a situation in mind. We find that the only fair and reasonable compensation to ONA is to direct that the Regional Municipality pay all the costs of development and implementation of the pay equity plan as ordered by the review officer.

1 Fourth, ONA asks that the Tribunal order the Employer to pay the legal costs associated with ONA's enforcement of the order in these proceedings. In Hospital for Sick Children (1991), 2 P.E.R. 174, the Tribunal held that there was no jurisdiction to award legal costs in advance of determination of issues, given that the Act has made no provision for such costs. In that case there was no request for a remedialorder. In this case, ONA has requested the legal costs as part of a remedial order. However, the Tribunaldoesnotfindthatthisisanappropriatecaseinwhichtoorderlegalcosts. In our view, the remedy which we have crafted is a full and fair remedy. We do not find it is necessary to decide whether or not the Tribunal would order legal costs as part of a "make whole" order. In the circumstances of this case, toorderlegalcostsaspartofdamageswouldbeunnecessarilypunitive. The Tribunal's function is to award compensatory, not punitive damages.

2 The Tribunal recognizes that quantifying the compensatory damages discussed above may not necessarily be an easy task, however that is not a reason to avoid such an order in the circumstances. As the Labour Board held in Radio Shack, supra, in discussing loss of bargaining opportunity:

101. It can of course, be argued that damages for the loss ofsuchanopportunityare too speculative to estimateand ifarbitrarilysetwould be punitive innature-aresult that would appear to contravene the first tenet discussed. The argument, however, is inconsistent with the long accepted principle that one whose wrongful act precludes the exact determination of damage should not be able to evade his duty to compensate for that damage because of the uncertainty caused by his own wrongdoing.

The Tribunal's goal in awarding compensatory damages in the form of a "make whole" order is to try to return ONAascloseaspossibletothepositionitwouldbeinbutfortheEmployer'sbreachofthe Act and of the order. Although we cannot fully rectify the loss of ONA's ability to negotiate a gender neutral comparison system and pay equity plan, we can compensate the Union for the failure of an unwilling Employer to negotiate. The Tribunal will decide any issues arising out of the quantification of such compensation.

46. In sum, we find that this is an appropriate circumstance in which to vary the Order for the reasons cited above. In our view, the new remedy is in keeping with the original intention of the Decision, to ensure the implementation of pay equity for the nurses employed by the Municipality. The directions below are clear and workable and appropriately arise out of the issues and circumstances of this case.

Order

47. Having regard for the Tribunal's findings in its decision dated May 29, 1991 that the Employer violatedsections4,5,7,12and 14 ofthe Act, and having regard for the events subsequent to the Decision inwhichthe Employerfailedto comply with the Order, the OrderofMay29,1991 isherebyrevokedand the following substituted therefor:

1 We direct ONA to submit to the Employer, within 7 calendar days of this decision, any furtherrequestsforinformationrequiredfor its proposed system, including but not limited to,informationonjobclasses,jobcontentandsalaryinformation. We direct the Employer to providethis informationto ONA, as wellas the informationONApreviouslyrequested, within 21 calendar days of this decision.

2 The Tribunal orders that a review officer be assigned under subsection 25(2) of the Act to prepare, without further delay, a pay equity plan for the employees in these bargaining units and specifically to:

a) to conduct a pilot test of the ONA proposed gender neutral comparison system using the services of any or all those who designed the system;

b) to consult with ONA in modifications to the comparison system following the pilot;

c) to assess the system for its appropriateness in this workplace, given the requirements of the Act;

d) to prepare and post a pay equity plan that the review officer believes appropriate.

1 The Tribunal orders under subsection 25(3) that the officer may retain the services of any such expert as the review officer considers necessary to prepare the pay equity plan.

2 TheTribunalfurtherordersundersubsection25(2)(a)that the Employer pay the costs of preparation of the pay equity plan, such costs to be assessed and determined by the review officer.

3 The Tribunal orders the Employer to pay compensatory damages arising after July 28, 1991,thedateof thebreachoftheTribunal'sorder. We direct ONA to prepare and send a bill to the Employer itemizing damages arising out of the breach.

4 The Tribunal declines to award expenses incurred by ONA prior to the Employer's breach of the order.

5 The Tribunal declines to award legal costs for these proceedings.

6 The Tribunal declines to consider ONA's request to state a case under section 13 of the Statutory Powers Procedures Act.

7 Any concerns with respect to unnecessary delay that the review officer is unable to resolve,maybe referredback to the Tribunalbywritten submission, and the Tribunalmay decide the issue without a further hearing.

8 The Tribunal will remain seized to deal with matters arising out of this decision, including any issues arising out of the calculation of compensatory damages.

DECISION OF MEMBER SHARON LAING, MAY 19, 1992

1 I dissent from the majority on the extent of the compensatory damages awarded in these circumstances. The heavy handed approach used by the majority unduly burdens this Employer. The purpose of an award of damages is to compensate one party for expenses (damages) it would not have incurred but for the improper conduct of the other party. The majority award is clearly beyond compensatory.

2 Before turning to the primary focus of my disagreement, I would like to point out that while I concur with the majority in directing the review officer to start by assessing ONA's proposed system, it must be made clear that the officer is in no waycompelledtoadoptit. The Tribunal cannot fetter the discretion of the review officer. I am confident that the officer in meeting his or her obligations will determine what is appropriate in this workplace.

3 I turn now to a consideration of the majority's award. I agree with the majority on that portion of the Order that accomplishes the two important goals of compensating ONA for damages it would not have incurred but for the breach and ensuring that a pay equity plan will be prepared. For clarity, I agree with the following remedies found in the majority decision:

• That the review officer pilot test the ONA proposed system using the services of the designers.

• ThatthereviewofficerconsultwithONAinmodificationstotheproposed system following the pilot.

S That the review officer assess the system for its gender neutrality and its appropriateness for these bargaining units.

• Thatthereviewofficerprepareandpost a pay equity planthattheofficerbelieves appropriate.

• That the Employercompensatefordamagesarisingafterthedateofthe breach of the Tribunal's Order.

1 Doing all of the above would effectively returnONAtothepositionitwouldhavebeenin,butforthe breach. Once that has been done the aim of the Tribunal should be to ensure that a pay equity plan is prepared for these bargaining units. That will be accomplished through the appointment of a review officer to prepare such a plan.

2 Once the Tribunal has achieved those goals, it is inappropriate to go further. The majority decision to require payment of the review officer's preparation of the plan moves the Order from one which is compensatory and consistent with the goal of achieving pay equity, to one which is punitive.

3 The majority has found at paragraph 43 that this portion of the order is justified and appropriate. On what basis have they made that finding?

7. In Radio Shack, [1979] OLRB Rep. Dec. 1220, the Labour Board in reviewing its approach to unfair labour practice remedies wrote at paragraph 93:

... An important strength of administrative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable, they should take account of the economics and psychology permeating the situation at issue; and they should attempt to take into account the reasons forthe statutory violation. Remedies should also be sensitive to the interests of innocent bystanders . ... the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and ffair to attract as much self-compliance as possible. (emphasis added)

8. The Board goes on at paragraph 94 under the basic principle "A Remedy is Not A Penalty" to say:

Ifdeterrencewasallthatthe Board hadto keepin mind, it would be asimple matterto set up a systemof penalties which would achieve this end. There is little doubt that penalties could be devised which would provide second thoughts to anyone intent on violating The Labour Relations Act. But the Legislature did not provide the Board with this role and probably for good reason. ... By implication and by the absence of punitive language elsewhere in the statute, it is reasonable to conclude that the Board should not fashion its remedies under section 79 with the primary view of penalizing parties ....

4 The considerations enunciated in Radio Shack are pertinent to the consideration of these matters.

5 The Regional Municipality, through Mr. KeithRichardson, Chair ofthe MunicipalityofHaldimand-Norfolk,came beforethe Tribunalto explainthe reason why it had not compliedwiththe Tribunal'sorder. Mr. Richardson explained that the Municipality was without the financial resources to retain a consultant to assist in the draftingofa proposalfora comparisonsystem, and it also lacked the in-house expertise to draft such a proposal. Mr. Richardson further explained that the Municipality was without financial resources to hire a consultant to assess the proposal of ONA and that the financial difficulties were disclosed to ONA in the summer and fall of1991. In closing, Mr. Richardson stated that the Municipality could not afford to hire Counsel to represent itinthesehearings. As a result, the Regional Municipality of Haldimand-Norfolk respectfully withdrew from these hearings.

6 Through the evidence disclosed, the Tribunal was made aware that the Municipality informed the provincial government in June 1991 that it faced a considerable fiscal crisis as a result of attempting to implementpayequity. The Municipality informed the provincial government that the unanticipated expense incurred,wasinpart duetothe refusalofONAduringthe hearings toparticipateinsettlement attemptsand regrettably the hearinghadcontinuedforanadditionalyear.The Tribunalwas also made aware of the fact that the Municipality had sought reimbursement from the provincialgovernment for $1,308.452.00 spent in pay equity related consulting fees, expert witness fees, legal fees and staff resource time. The Municipality received reimbursement of $343,668.00 from the Government of Ontario and was seeking further reimbursement.

7 These are the circumstances under which the Municipality did not comply with the Tribunal's order. Thesearethesamecircumstances,whichinthe majority's view, justify the extraordinaryOrder. I strongly disagree with their finding and their characterization.

8 The Pay Equity Act places obligations to achieve pay equity on both the Employer and the Bargaining Agent. Presumptively parties are expected to share the costs in the negotiation of a pay equity plan. In cases where parties are unable to agree upon a plan and the Tribunal orders a review officer to prepare it, it is reasonable to expect that the Tribunalwould directthe partiesto share in the expenses, so their inability to meet the timeframes set out in the statute would not necessitate the taxpayers incurring the expense.

9 In the circumstances of this case, the first of its kind before this Tribunal, I see no reason for a departure from the general policy. The Tribunal in its efforts to have its decisions perceived as reasonable and fair should reserve such departures for truly egregious violations. That is not the case before us.

10Taken as a whole, in this context, this Order extends far beyond a full remedy and does not, in any way, resemble a fair remedy that flows from the breach. After returning ONA to its former position it is unreasonably excessive to then determine that this Employer bear all the costs related to the preparation of the pay equity plan. This is clearly punitive and there exists no connection between the breach, its consequences and the remedy.