0359-92 Canadian Union of Public Employees and Local 2332, Applicant v. the Crown in Right of Ontario, Kenora-Patricia Child and Family Services, Respondents 0388-92 The Crown in Right of Ontario (Ministry of Community and Social Services), Applicant v. Kenora-Patricia Child and Family Services, Canadian Union of Public Employees, Respondents 0390-92 Kenora-Patricia Child and Family Services Management Staff Association, Applicant v. The Crown in Right of Ontario (Ministry of Community and Social Services), Kenora-Patricia Child and Family Services, Respondents 0393-93 The Crown in Right of Ontario (Ministry of Community and Social Services), Applicant v. Kenora-Patricia Child and Family Services, Canadian Union of Public Employees, Respondents
Appearances: Steve Patterson for the Crown; Cathy Lace for the Union; No one appearing for the Association or the CAS.
Before : Janis Sarra, Vice-Chair; Charles Taccone and Geri Sheedy, Members
Cite As: Kenora-Patricia Child & Family Services (1993), 4 P.E.R. 79
Employer - Amendments
The Tribunalfound thats.1.1 ofthe Act limitstheTribunal'sabilitytodeclaretheCrown to be anemployer for purposes of pay equity except where specifically permitted by statute. As the circumstances of this Application were not within the statutory exceptions, the Tribunal could not enforce the Review Officer's Order which had named the Crown as the pay equity employer.
Employeur - Modifications
Le Tribunal a statué que l' article 1.1 de la Loi restreint son pouvoir de déclarer que la Couronne était un employeur aux fins de l'équité salariale sauf dans les cas expressément permis par la Loi. Comme les circonstances de la requête n'entraient pas dans le cadre des exceptions prévues, le Tribunal ne pouvait pas mettreà exécutionl'ordrede l'agent derévisionqui stipulait que la Couronne était l'employeur auxfins de l'équité salariale.
DECISION OF THE TRIBUNAL, NOVEMBER 9, 1993
1There are four Applications relating to the issue of who is the employer for pay equity purposes. Files 0388-92 and 0393-93areApplicationsfiledbythe CrowninRight ofOntario (the "Crown") disputingtwo Review Officer Orders datedMay10, 1991 and September25, 1991, whichfound that the Crown is the employer of employees at Kenora-Patricia Child and Family Services. The first Order relates to employees represented by the Canadian Union of Public Employees (" CUPE") and the second relates to the Kenora-Patricia Child and Family Services Management Staff Association (the "Association"). Files 0359-92 and 0390-92 are Applications filed by CUPE and the Association respectively, alleging noncompliance and seeking enforcement of the same Orders.
- The Tribunal convened a hearing to hear a preliminary objection by the Crown that under the Pay Equity Act, R.S.O. 1990 c.P.7 as amended, the Tribunal does not have jurisdiction to grant the relief requested by CUPE and the Association, specifically to enforce the Review Officer's Orders that the
Crown is the employer of these employees for pay equity purposes. Counsel for the Crown relied upon section 1.1 ofthe amended Act, arguing that these employees do not fall within the enumerated categories where the Crown is defined as employer. Further, Counsel submitted that these applications did not meet the allowable exception in subsection 1.1(4)(b) as there was no application pending before the Tribunal prior to December 18, 1991, the date upon which section 1.1 is deemed to take effect. Counsel for the Crown went so far as to submit that while these amendments were draconian, they were consistent with the intention of the amendment. He noted that first reading of this amendment occurred after the Tribunal's decisionin Kingston-Frontenac Children's Aid Society (No. 2) (1992), 3 P.E.R. 117, and the intention of the Legislature was clearly to prevent a similar outcome in other applications.
2Counsel for CUPE did not dispute that all four Applications were filed with the Tribunal after December 18, 1991. However, she submits that in the circumstances of an agreement between the parties not to carry forward children's aid society cases to the Tribunal pending determination by the Tribunal in the Kingston-Frontenac case, and negotiations to settle, that the Tribunal ought to construe subsection 1.1(4)(b) of the Act to permit these files to be treated asApplications pendingbeforethe Tribunalbefore December 18, 1991. In the alternative, Counsel asks that section 1.1(4)(b) be read as allowing all cases onthe issue ofCrownas employerto proceed,aslongasone case, inthis case Kingston-Frontenac, was pending before the Tribunal prior to December 18, 1991. Counsel drew the Tribunal's attention to an extensive body of jurisprudence which discusses ambiguous or impracticable statutory language and interpretive principles which find that disentitlement provisions are to be read narrowly and re-entitlement provisions broadly in order to maximise the rights of individuals under remedial legislation.
3The Association did not attend at the hearing, but sent a brief written submission arguing that the Tribunal has jurisdiction to hear these cases.
4In this case, there were Review Officer Orders declaring that the Crown is the employer of these employees for pay equity purposes. The parties conducted negotiations for settlement of all pay equity issues outstanding, but to no avail. The evidence led at the hearing disclosed that the parties did agree to hold anyenforcement applicationinabeyanceuntiltheTribunal'sdeterminationofthe Kingston-Frontenac case. However, there is no dispute that this agreement was not intended to bind the parties to the outcome in that case. Subsequently, the GovernmentproposedandeventuallyenactedBill102, An Act to Amend the Pay Equity Act which received Royal Assent on June 30, 1993. The effect of the Act was to retroactively change the rights of these employees and their bargaining agents, rendering the Review Officer's Orders unenforceable by the Tribunal.
5We are sympathetic tothesituationofthese employees who had rights under the statute which have nowbeenrenderedinvalid with the amendment. However, wedonotfindthatthisamendmentfallswithin the category of statutory language that is either ambiguous or impracticable, and this appears to be a prerequisite for the application of muchofthe interpretive approachsought by CUPE. Here, the language is clear, the intention of the Legislature is clear and the effect is clear. The effect of the legislation is to invalidate the Review Officer's Orders. The Legislature has exclusive jurisdictiontopasssuchlegislation, subject to the requirements of the Charter. Therefore, subject to Charter arguments,the Tribunalcannot grant the remedy requested by CUPE and the Association.
6CUPE has served notice to all parties in these proceedings and the Attorneys General of Ontario and Canada with respect to a Charter challenge. The Tribunal has yet to hear these submissions. Subsequent to the hearing, CUPE requested, with agreement ofthe otherparties,thatthesemattersbe adjourned sine die. The Tribunal grants this adjournment in accordance with the Tribunal's usual practice.
7This panel is not seized.