0423-93 CanadianUnionofPublic Employeesand itsLocal1776, Applicant v. BramptonPublic Library Board, Respondent 0444-93 Brampton Public Library Board, Applicant v. Canadian Union of Public Employees and its Local 1776, Respondent
Before: Raphael Palumbo, Acting Chair; Janet Slone Taylor and Geri Sheedy, Members
Cite As: Brampton Public Library Board (1993) 4 P.E.R. 81
Review Services - Consent to Testify
The Tribunal reviewed the Review Officer's Order and concluded that the extraordinary circumstances required for its consent were absent. As the Review Officer's Order was directed solely to the question of maintenance, his representations with respect to the use of proxy comparators were not an issue in this case. The defence of officially induced error was not applicable in these circumstances.
Services de révision - Consentement à témoigner
Le Tribunal a examen de l'ordre de l'agent de révision et a conclu à l'absence des circonstances extraordinairesdontilavaitbesoinpourfairedroitàunetellerequête. Comme l'ordre de l'agent de révision avait exclusivement trait à la question du maintien des pratiques de rétribution, ses déclarations quant au recours à des groupes de comparaison de l'extérieur ne constituaient pas un point en litige. L'invocation d'une erreur imputable à l'autorité compétente ne constitue pas un moyen de défense pertinent dans les circonstances.
DECISION OF THE TRIBUNAL, NOVEMBER 12, 1993
1By letter dated June 21, 1993, Brampton Public Library Board (the "Board") requested the consent of the Tribunal to have the Review Officer, Gerald Lee, testify before the Tribunal.
2By decision dated July 13, 1993, the Tribunal directed the Board, the Canadian Union of Public Employeesand itsLocal1776(the"Union")andthePayEquityOfficeto filewrittensubmissions respecting the Board's motion. The Union and the Pay Equity Office oppose the Board's request.
3For the purposes of this decision, we will assume that the background information outlined in the Board'sApplication, Response and written submissions, and recited in paragraphs four throughelevenof thisdecision,areaccurate. Wherethepositionsofthepartiesonvariousissuesarebeingreproduced,they will be identified as such.
Background to the Request
1 On September 12, 1989, the Board by letter advised the Union that for the purposes of the Pay Equity Act, R.S.O. 1990, c. P.7 (the "Act") it was the employer of the staff employed at the Board.
2 On November 15, 1989, the BoardandtheUnionmetwithReviewOfficer,G.Leeandenteredinto
a written agreement which included the following provisions: i.) ...in the event that the Pay Equity Tribunal finds for the Union in the matter of
C.U.P.E. versus Metropolitan Toronto Reference Library and the Corporation of MetropolitanTorontointhatcase is the employer for purposes of Pay Equity Act, 1987, Brampton Public Library agrees that in this complaint the employer shall be agreed to be the Corporationof the City of Brampton, subject to the approval of the BramptonPublic Library Board.
ii.) This agreement does not preclude the parties requesting a ruling by the Review Officer on the definition of employer for the purposes of Pay Equity.
1 On December 5, 1989, the Tribunal determined that the Corporation of MetropolitanToronto was the employer of the Metropolitan Toronto Public Library employees for the purposes of the Act. On December 21, 1989,theBoardbyletterinformedtheReviewOfficerthatitwishedtodiscusswithhimthe questionofthe definition ofemployerforthe purposes ofpayequityata meetingscheduledforJanuary10, 1990.
2 On January 4, 1990, the Board by letter advised the Pay Equity Commission that it had failed to negotiate a pay equity plan with the Union by the mandatory posting date of January 1, 1990.
3 On January 10, 1990, representatives of the Boardmetwiththe Review Officer. At that meeting, "
[t]he Board representatives were ... advised by ReviewOfficer,G. Lee,thata proxycomparisonmethod was an option to comply with the Act if the Respondent agreed."
- By letter dated February 2, 1990, the City of Brampton advised the Board and the Union that the following information would be made available to them for pay equity purposes:
"Job descriptions of male job classes in C.U.P.E. Local 831, and the Corporationof the CityofBrampton'slowerlevelmanagement staff so as to enable the Boardand the Union to select the male job classes whichtheywishto compareto the female job classes of the Board for which there are no male job classes of equal or comparable value."
2 On February 12, 1990,theBoardandtheUnionenteredintoaMemorandumof Agreement which provided, inter alia, that:
- If after performing job comparisons as required under the Pay Equity Act, no male job class is found in which the work performed is ofequalor comparable value to that of afemale job classofthe Board, the female jobclassshallbe comparedto male jobclasses outside the Board as follows:
(a) The Board & the Union shall each choose male job classes from C.U.P.E. Local 831 - inside workers, outsideworkers and technicaland professionalworkersat the City
ofBramptonforeachfemale job classforwhich, no comparable male job classwasfound, as identified above. If no male job class is found from among these job classes to be of equal or comparable value to that of the female job class in question, the comparisons in paragraph (b) herein may be made.
(b) The Board and the Union shall each choose male job classes from the supervisory management staff at the City of Brampton for each female job class for which no comparablemale job class was found withintheBoardorC.U.P.E. Local831attheCity of Brampton.
(c) The Board and the Union shall each choose male job classes from throughout the City of Brampton for each female job class for which no comparable male job class was found within the Board, or C.U.P.E. Local831, or from supervisory management staff at the City of Brampton.
1 The Board's position is that after performing job comparisons as required by the Act, no male job classes were found to be comparable to female job classes within the Board. On January 27, 1992, the Employer and the Union agreedinwritingtouseaproxy job comparison method. The agreement further provided that the Board was the establishment under the Act and designated all job classes represented by the Union at the Board as female dominant. A schedule of adjustments was set out, but, the Board argues,the agreement did notspecifythatsubsection7(1) ofthe Act applied. The Board takes the position that the agreement is neither a pay equity plan within the meaning of the Act, nor is it covered bythe said Act.
2 On May 20, 1992, the Union applied to the Pay Equity Commission complaining that the wage gap betweenthefemalejobclassesandtheirmalecomparatorjobclasseshadwidened. A Review Officer was appointed to investigate the complaint.
3 After completing his investigation, the Officer issued an Order, dated October 8, 1992, in which he found that the Board had failed to maintain pay equityinaccordancewithsubsection7(1) of the Act. On March 24, 1993, the Union brought an Application to the Tribunal requesting that the Board be ordered to comply with the Review Officer's Order. The Board subsequently submitted an Application to the Tribunalrequestingthatthe Officer'sOrder berevoked and seekingadeclarationthatithad complied with the Act.
The Board's Position
- The Board makes its request for consent to allow the Review Officer to testify in support of its argument thatan"officiallyinducederror"constitutesa defenceto a contraventionofsubsection7(1) ofthe Act. The Board submits that the circumstances of this case are such that consent should be granted. The Board argues that it was misled by the Review Officer into thinking that utilizing the proxy comparison method would notcontravene the Act.The Boardisofthe viewthatitsrelianceuponthe erroneous advice of the Review Officer was reasonable in all the circumstances. In the Board's view, the Review Officer's testimonyissalient and necessarytotheBoard'scapacityto justifyfullya revocationofthe ReviewOfficer's Order and is necessary topermit the Tribunalto determine the applicabilityofthe "officially induced error" defence. The Board also argues that the Review Officer exceeded his jurisdiction by allowing the parties to enterintoanagreement which, initsview, "the Board incomplying withthe agreement wassubsequently found by the Review Officer to have breached the Act". Therefore, the Board argues, the Review Officer did not properly or validly exercise his discretion when advising the Board to utilize the proxy method of job comparison. Finally, the Board argues that an issue of natural justice exists and the Board should be able to present full information to the Tribunal at the hearing.
The Act
- Section 31 of the Act provides as follows:
Except with the consent of the Hearings Tribunal, no member of the Hearings Tribunal, employee of the Commission or person whose services have been contracted for by the Commission shall be required to testify in any civil proceeding, in any proceeding before theHearingsTribunalor inanyproceedingbeforeanyothertribunalrespectinginformation obtained in the discharge of their duties or while acting within the scope of their employment under this Act.
2 In New Liskeard Board of Police Commissioners (No. 1) (1991), 2 P.E.R. 39,the Tribunaldealt with asimilarrequestforconsenttocompelaReview Officer to testify before it. We adopt the reasoning of the Tribunal in that decision and find that, while a Review Officer is a competent witness, s/he has a privilege, although not absolute, against being compelled to testify. Section 31 must be interpreted so as to weigh a party's needto respond fullyto allegations againstit,or justify revocation of a Review Officer's order, against the need to maintain confidentiality of the Review Services investigative and settlement processes. Consent should be granted only in extraordinary circumstances. We will now proceed to determine whether the circumstances of this case require that consent be granted.
Decision
1 The first issue to be decided is whether it is in fact the case that the Board, acting upon the advice of the Review Officer, entered into an agreement with the Union and was then subsequently found to have breached the Act on the basis of its obligations under the agreement. To dispose of this issue we must consider the Review Officer's Order.
2 The Review Officer found that:
With respect to the definition of establishment for pay equity purposes, the parties, in conjunctionwiththe Corporationof the City of Brampton (the City), agreed that the City would act as a proxy employer. As the bargaining unit consisted of entirely female job classes, this agreement enabled those job classes to seek male comparators from within the City.
A pay equity plan was agreed to and posted in January 1992 identifying male job classes from CUPE Local 831 (Outside) and CUPE Local 831 (Inside) as the comparators for the female job classes at the Library. The pay equity plan also included a schedule of adjustments which identified the manner in which pay equity would be achieved for the female job classes.
- The Officer characterized the issue before him as follows:
The Union claims that the wage gapbetweenthe female jobs and their male comparators widened on a number of occasions between February 1, 1990 and August 1, 1992, in contravention of the Act.
The Employer acknowledges that the wage gap has widened, however, due primarily to financial difficulties, is unwilling to rectify the situation.
The Officer then proceeds to discuss the employer's obligation under subsection 7(1) of the Act:
Subsection 7(1) of the Act states:
Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.
In this particular instance, the male comparators from Local 831 (Outside) received economic increases on February 1 and August 1, 1991, and February 1 and August 1, 1992. Classification increases were also granted to a number of male job classes on January 1, 1991, and again on January 1, 1992. The male comparators in Local 831 (Inside) received economic adjustments on January 1, 1991 and January 1, 1992. Consequently, theseincreaseshadthe effectofwideningthe wage gapbetweenthe female job classes and their male comparators, even though pay equity adjustments were being made as required by the pay equity plan ...In this instance, once the gap is narrowed through a pay equity adjustment, it cannot be widened through the application of a percentage adjustment or a classification adjustment. Amounts needed to re-close a gap which has widened must be paid to regain compliance with subsection 7(1) of the Act...
1 Clearly, the Officer's Order dealt only with the issue of maintenance. It does not in any way impugn the agreement between the parties or the pay equity plan which the Officer maintains resulted from that agreement. The Officer did not find that either the agreement in question or the resultant pay equity plan violated the Act in any way.
- In our view, the Officer did not find that the use of the proxy comparison method was in violation of the Act. The only violation found by the Officer was with respect to the issue of maintenance pursuant to subsection 7(1). Therefore, the question of the Board's reliance on the Review Officer's opinion
regardingthe proxy method is not in issue in this case,and wedo notneedtohearfromthe Officeronthat point.
2 Alternatively, if it is the Board's position that the "officially induced error" upon which the Board seeks to rely was the Review Officer's failure to indicate, at the January 10, 1990 meeting: 1) "that the proxymethodofcomparisoninvolvingthe City of Bramptonincludedanobligationonthe Employerunder subsection 7(1) of the Act to maintain pay equity"; and 2) "by his silence in effect misled the Employer to believe that all of its obligations under the Act, including maintenance, would be satisfied by the proxy method of comparison involving the City of Brampton", then the Tribunal must consider the applicability of such a defence to these circumstances.
3 The Board argues that evidence at the hearing must be sufficient to allow the Tribunal to determine the applicability of the defence of "officially induced error". This defence was raised in Regina v. Cancoil Thermal Corporation et al. (1986), 11 C.C.E.L. 219 (O.C.A.). In that case, charges were laid against acorporationand one of its supervisors under the Ontario Occupational Healthand SafetyAct, R.S.O. 1980, c. 321 (the "OHSA"). Both respondents argued that a provincial MinistryofLabourinspectorhad carried out an inspection of certain equipment and had been satisfied that there was no contravention of the OHSA or its regulations. Subsequently, an employee was injured while he was using the equipment in question.
4The Court of Appeal discussed the defence of "officially induced error" and held that:
The defence of "officially induced error", exists where the accused, having adverted to the possibility of illegality, isledto believe,bythe erroneous adviceofanofficial, that he is not acting illegally...
The defence of "officially induced error" is available asa defenceto anallegedviolationof a regulatory statute where an accused has reasonably relied upon the erroneous legal opinion or advice of anofficialwho isresponsible forthe administrationorenforcement of the particular law. In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable. The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.
I agree with the following statement made by Professor Barton in the article referred to, supra, at p. 331:
Where the advice is given by an official who has the job of administering the particular statute, and where the actor relies on this advice and commitswhat is in fact an offence,evenifthe agencycannotbe estopped does it follow that the actor should not be excused? To do so is not to condone an illegality or say that the agency is estopped into a position of illegality, but to recognize that the advice was illegal but excuse the actor because he acted reasonably and does not deserve punishment.
1 Given that we have decided that the Review Officer's Order does not find a violation of the Act based strictly onthe agreement tousethe proxymethodof comparison to establish pay equity, we do not see how this defence is applicableinthecircumstancesofthiscase. The Board was not "accused" by the Officer of violating the Act in circumstances where it relied upon the Officer's advice in entering into an agreement with the Union. Given that the Officer did not find that the agreement, or the pay equity plan to which he refers his Order, violated the Act, it is not necessary to hear evidence respecting what did or did not lead the Board to enter into the agreement or the alleged pay equity plan.
2 This leaves unresolvedthequestionofwhetherthefailureoftheReviewOfficertodrawtheBoard's attention to the maintenance issueconstitutesan"officiallyinducederror". For this defence to be available to the Board it must show that it relied upon an erroneous opinion of the Officer that all of its obligations under the Act, including maintenance, would be satisfied by the proxy method of job comparison, and further that its reliance was reasonable.
3 There is no indication that the Review Officer offered any opinion to the Board on the question of maintenance. In fact, the Board's contention is that the Officer was silent on the issue. Therefore, it cannot be said that the Board relied upon an erroneous opinion of the Officer. There was no opinion at all. Furthermore, we do not believe that it was reasonable for the Board to rely on the Review Officer's failure to expressly advise it on the maintenance issue in the face of the clear and express obligations found in subsection 7(1) of the Act. We, therefore, do not believe that the defence of "officially induced error" is applicable in these circumstances and consequently we decline to consent to compel the Officer to testify on this aspect of the case.
4 The next issue to be decided is whether, as the Board argues, the Review Officer exceeded his jurisdiction "by allowing the parties to enter into an agreement which the Board in complying with the said agreement was subsequently found bythe ReviewOfficerto have breachedthe Act." The Board submits that by allowing this to occur, the Officer did not properly or validly exercise his discretion when advising it to utilize the proxy method of comparison.
5We reiterate that the Review Officer did not find the Board in violation of the Act by entering into or complying with the agreement on the proxy method. The Officer found the Board to have breached the Act by not maintaining pay equity. Secondly, it appears from the Board's Statement of Facts that the Officer simply advised the Board of the availablity of the proxy comparison method and that "it was an option to comply with the Act if the Respondent agreed." (emphasis added) It does not appear to us to be an improper use of the Officer'sdiscretionforhimto makesuggestions as to how issues ought to beresolved. That appears to be his responsibility under subsection 23(1) whichprovidesthattheOfficer must investigate a complaint and in the process may endeavour to effect a settlement.
6Lastly, the Board has argued that the Review Officer's conduct raises an issue of natural justice and that it should be allowed to present evidence respecting that conduct. This necessitates a review of the nature of a hearing before the Tribunal. In Cybermedix Health Services Ltd. (1990), 1 P.E.R. 41, at paragraph 17, the Tribunal held that a hearing before it is not an appeal from a Review Officer order, but rather a hearing de novo on the issues in dispute. We adopt this reasoning.
- The practical effect of the Cybermedix decision is to assure parties before the Tribunal that even if a Review Officer erred in the exercise of her or his settlement or decision-making functions, any such error could becuredbyadecisionofthe Tribunal. We agree with the following reasoning of the Tribunal in New Liskeard, at paragraph 37:
The Tribunal does not ask: given what the Officerhadinfront ofheror him or given what he or she believed, is what he or she decided correct or reasonable? It does not ask: was the Officerbiasedand ifhe or she was,did thateffectthe order? Rather,the Tribunalasks: given what wehave heardand read inthe materials given to us in evidence by the parties, what should we conclude in this case? Does that differ in any way from what the order says and should weconfirm, vary or revoke the order? Thus the Tribunalhaslittle interest that the Officer had certain thoughts in mind when she or he made the order. The basis of the Officer's order is in the normal course irrelevant to the Tribunal's decision. Furthermore, any breach of natural justice or fairness manifested by, for example, bias, which might have occurred, is cured by the opportunity to have a new hearing in front of the Tribunal. It is not our task to hear complaints about a failure by Review Officers to follow natural justice or principles of fairness, the answer might be different if we were sitting in appeal of an Officer's order and were concerned whether it was correct or reasonable,butwe are not. In thecircumstancesofthiscase,anynaturaljusticeconcerns on the part of the Board can be overcome by the opportunity to appear before the Tribunal to present its evidence on the issues in dispute. As we have indicated, hearings before the Tribunal are treated as de novo proceedings.
7We find that the Review Officer's testimony is not required in order for the Tribunal to decide any of the issues in dispute before us. It is the parties who possess the evidence pertaining to these matters. Furthermore,itistheseparties from whom we need to hear respecting the interpretationto be giventothe statutory provisions relating to these issues.
8We are satisfied that the circumstances of this case are not so "extraordinary" as to justify our granting consent tocompeltheReviewOfficertotestifyintheseproceedings. There is no reason why the Board cannot present its case and defence on the issues without the evidence of the Officer. For these reasons, it is our view that the interestsofconfidentialityunderlyingsection31 ofthe Act weigh against the granting of consent in this case. Accordingly, we are not prepared to grant consent to require the Officer to testify.
9Finally, it may be instructive to the parties for the Tribunal to outline the issues raised in the Applications before us. InitsApplication,theBoard requests that the following issues be disposed of by the Tribunal:
i) DoestheTribunalhavejurisdictiontoreviewthesettlementreachedbytheBoardand the Union?
ii) Is the Order of the Review Officer founded on subsections 7(1) and 24(3) of the Act properly before the Tribunal?
iii) Is the Board in contravention of any of the provisions of the Act?
In its Application, the Union maintains that the Board has not complied with the Order of the Review Officer and requests that the Tribunal order such compliance. If there are any other issues arising out of the Applications before us, these can be raised when the hearing resumes on December 9, 1993.