OPEHT 1993

Thomson Newspapers objected to a Review Officer's Order finding it to be the employer for the purposes of pay equity of employees at the Oshawa Times.

The Tribunal reviewed the relationship between the two entities and concluded that, while the publisher of the Oshawa Times controlled the operation of the newspaper, he did so as an employee of Thomson.

As such he was obliged to carry out Thomson's corporate goals and objectives.

Overriding financial control rested with Thomson as did ultimate authority for compensation practices.

The Tribunal affirmed the Review Officer's order and found Thomson to be the employer.

The applicant applied to the Tribunal regarding a Review Officer's Order.

Prior to the hearing, the parties reached an agreement on an amended pay equity plan and jointly requested that the Tribunal revoke the Order.

The Tribunal declined to issue the consent order, noting that the Memorandum of Settlement did not disclose the basis for certain conclusions regarding job rates, gender predominance, and comparability of job classes.

The Tribunal requested that the parties provide specific information in writing or schedule a hearing day before it would consider revoking the Order.

The employer applied for reconsideration of a Tribunal decision regarding the pay equity bargaining process and comparison of job classes.

The employer argued that the comparison system should not have been amended, that materials not before the Tribunal were considered, and that there was no evidence to support conclusions about the rating committee's ability to assess jobs.

The Tribunal dismissed the application, finding that the original decision was consistent with established jurisprudence on job content accuracy, that the parties had full opportunity to make submissions, and that there was adequate evidentiary support for the findings.

The Tribunal concluded the employer failed to meet the test for reconsideration.

The employers applied to the Tribunal alleging a change in the identity of the employers under the Pay Equity Act.

The employers argued that the Tribunal should determine who the employer is at different points in time due to changed circumstances, even though no pay equity plan had been posted.

The Tribunal held that it lacked jurisdiction to inquire into changed circumstances absent an existing pay equity plan.

The existence of a plan is a precondition to examining whether changed circumstances render the plan no longer appropriate.

The Brampton Public Library Board brought a motion requesting the Tribunal's consent under section 31 of the Pay Equity Act to compel a Review Officer to testify.

The Board argued that the Review Officer's testimony was necessary to establish a defence of 'officially induced error' regarding its failure to maintain pay equity.

The Tribunal dismissed the motion, finding that the Review Officer's order was directed solely to the question of maintenance, not the proxy comparison method agreement.

The Tribunal concluded that the extraordinary circumstances required to pierce the confidentiality of the Review Services process were absent.

The parties reached an agreement prior to an oral hearing regarding pay equity job class evaluations and requested the Tribunal to vary a Review Officer's Order on consent.

The Tribunal refused the request, noting the parties provided no basis for the amendment and the requested variation went beyond the scope of the issues originally before the Review Officer.

The applications were adjourned sine die.

In a preliminary ruling to determine the identity of the employer for the purposes of the Pay Equity Act, the Tribunal held that the relevant point in time for the inquiry is the effective date of the Act (January 1, 1988).

However, the Tribunal noted it would also hear evidence regarding any changes in the organization up to the mandatory posting date to fashion practical remedies.

The Tribunal declined to hear evidence regarding the identity of the employer at the present time, as that was a separate question.

The parties requested an order from the Tribunal incorporating their agreement with respect to the production and use of sensitive business documents.

The Tribunal declined to order the agreement in its entirety, noting that it could not guarantee absolute confidentiality in light of potential freedom of information requests and its obligation to compile a public record for judicial review.

The Tribunal issued a modified protective order that balanced the parties' desire for confidentiality with the Tribunal's obligation to provide a fair and public hearing.

A group of individual teachers sought standing to participate in Pay Equity Hearings Tribunal proceedings regarding a pay equity plan negotiated between their employer and their bargaining agent.

The Tribunal dismissed their application and denied them intervenor status, finding that the Pay Equity Act does not provide individual employees represented by a bargaining agent with a statutory role in the preparation of a pay equity plan.

Furthermore, the teachers did not have a direct legal interest that would entitle them to party status at law, as the proceedings would not threaten the existence of their employment contracts or reduce their actual remuneration.

The Tribunal heard a preliminary objection by the Crown regarding its jurisdiction to enforce Review Officer Orders declaring the Crown as the employer for pay equity purposes.

The Crown argued that recent amendments to the Pay Equity Act, specifically section 1.1, invalidated the Orders.

The Union argued for a broad interpretation of the exceptions in section 1.1(4)(b) due to an agreement to hold applications in abeyance.

The Tribunal found the statutory language clear and unambiguous, concluding it lacked jurisdiction to enforce the Orders, subject to pending Charter arguments.

The matters were adjourned sine die.

The Union alleged that the Employer failed to bargain in good faith during pay equity negotiations and brought a preliminary motion to dismiss the Employer's application regarding a Review Officer's order on gender dominance.

The Tribunal refused to dismiss the Employer's application for delay or abuse of process, finding that meaningful bargaining had occurred.

However, the Tribunal found that the Employer failed to bargain in good faith by continuing to negotiate as if it accepted the Review Officer's first order while secretly intending to appeal it, thereby misleading the Union.

The Tribunal reserved on the quantum of compensation for wasted time and expense in evaluating job classes.

The employer applied to the Tribunal seeking a prospective interpretation of the red-circling provisions under s. 8(1)(d) of the Pay Equity Act.

The union raised a preliminary objection that the employer had not made out a prima facie case and that the matter was not ripe for adjudication.

The Tribunal agreed with the union, finding that the application was premature because a sufficient factual basis was required to determine if the statutory requirements for red-circling were met.

The Tribunal declined to render a decision in the abstract.

A group of unionized nursing employees filed a complaint alleging that the pay equity plan negotiated between their union and the employer contravened the Pay Equity Act by failing to accurately capture and value their job content.

The employer and union raised a preliminary objection that individual unionized employees lack standing to challenge a deemed approved plan.

The majority of the Tribunal held that while employees lack standing to complain under sections 12 and 14, which confer rights exclusively on the bargaining agent, they do have standing under section 7 to allege that the compensation practices fail to provide for pay equity.

However, applying a high threshold of review, the majority found that the application did not disclose an unreasonable exclusion of job information and dismissed the complaint.

The Vice-Chair dissented, arguing for a lower prima facie threshold.

The Ontario Nurses' Association (ONA) applied to the Pay Equity Hearings Tribunal after being certified to represent nurses at St. Joseph's Villa.

ONA argued that its certification constituted a changed circumstance under the Pay Equity Act, rendering the existing pay equity plan inappropriate, and sought disclosure of pay equity information.

The Tribunal held that certification was a changed circumstance because the Act requires separate plans for bargaining unit and non-bargaining unit employees.

The Tribunal ordered the existing plan to be split but declined to order the negotiation of a new plan.

The employer was also ordered to disclose specific information to allow ONA to fulfill its statutory obligations.