Corporation of the City of Brampton v. Brampton Professional Firefighters Association, 1995 CanLII 7207

PAY EQUITY HEARINGS TRIBUNAL

0500‑94 Corporation of the City of Brampton, Applicant v. Brampton Professional Firefighters Association, Respondent

0501‑94 Brampton Professional Firefighters Association, Applicant v. Corporation of the City of Brampton, Respondent

Before: Katherine Laird, Vice Chair and Members Janet Slone Taylor and Bruce Budd

Appearances: Paul Wearing for the Corporation of the City of Brampton; Mary Cornish for the Brampton Professional Firefighters Association

Cite as: Corporation of the City of Brampton (January 27, 1995) 0500‑94, 0501‑94 (P.E.H.T.)

DECISION OF THE TRIBUNAL, JANUARY 27, 1995

INTRODUCTION

1. The hearing into the two applications in this proceeding commenced on November 7, 1994. An initial decision of the Tribunal was issued on December 8, 1994. That decision denied a motion by the Brampton Professional Firefighters Association (the Association") for dismissal of the application of the City of Brampton (the City"). At the hearing on November 7, 1994, the Tribunal made an oral ruling granting an application by the City for further particulars and ordering the City to provide particulars for paragraphs 22 and 23 of its application (part 4) and with respect to the remedy sought.

2. The hearing was reconvened on January 4, 1995. Counsel for the Association advised the Tribunal that it was withdrawing its application. In addition, counsel raised several preliminary issues with respect to the City's application and sought an order of dismissal for, among other things, failure to provide sufficient particulars as directed in the November 7 ruling. After submissions from both counsel, all of these issues were dealt with by the Tribunal in oral rulings.

Because the matters dealt with in the January 4 rulings were at issue again when the hearing reconvened on January 10, 1995, the earlier rulings of the Tribunal will be summarized in paragraphs 4 to 10 below.

ISSUES RAISED IN THE CITY'S APPLICATION

3. For ease of reference in considering the issues raised by the City's application, the ISSUES" section of part 4 of the application is included here in its entirety. On the Tribunal's Form 1 application, the applicant in directed to include in part 4: a general statement of the issue or the reason for requesting a hearing". The City set out paragraphs 19 to 25 under the heading ISSUES".

Paragraph 19

It is submitted that Review Officer Chyczij exceeded his authority and acted contrary to s.34(2) and s.34(3) of the Pay Equity Act, R.S.O. 1990.

Paragraph 20

Furthermore, it is submitted that actions of Review Officers are subject to the rules of natural justice and procedural fairness.

Paragraph 21

It is submitted that Review Officer Chyczij acted in a manner that was procedurally unfair and obstructed the pay equity process which gave rise to an apprehension of bias in the mind of the employer.

Paragraph 22

It is submitted that the job comparison process providing the foundation for the pay equity plan ordered by Review Officer Chyczji failed to examine appropriate male comparators contrary to s. 4(2) and s. 6 of the Pay Equity Act, R.S.O. 1990.

Paragraph 23

Moreover the job comparison process conducted by Review Officer Chyczij and others was flawed in that not all work requirements were valued; values were not equally or consistently applied, giving rise to a gender biased result, contrary to s. 5 and s. 6 of the Pay Equity Act, R.S.O. 1990.

Paragraph 24

It is submitted that Review Officers Chyczij, Aucoin and Nelson usurped the role of the employer and the Association in one of the most critical phases of the pay equity process contrary to s. 12 of the Pay Equity Act, R.S.O. 1990.

Paragraph 25

In view of the manner in which the job comparisons were done and the lack of information regarding the process, the employer specifically reserves its right to amend or add to the within Application as additional information is disclosed.

ORAL RULINGS OF THE TRIBUNAL, JANUARY 4, 1995

4. At the hearing on January 4, 1995, the Tribunal declined to dismiss the application of the City and made oral rulings on the following issues raised by the Association:

• the adequacy of the notice given by the City with respect to the proposed expert witness;

• the adequacy of particulars provided by the City with respect to paragraphs 22 and 23 of its application;

• the relevance of the allegations of procedural unfairness, bias, and excess of authority with respect to the process at the Review Services Branch of the Pay Equity Office (Review Services");

• the nature of the remedy;

• issues to be dealt with at January 10 hearing.

The ruling on each of these issues is summarized below.

Notice Re: Expert Witness

5. The Tribunal found that the City had not provided the Association with sufficient information to satisfy Rule 9.01 of the Tribunal's Rules of Practice, both with respect to the qualifications of the proposed expert and the summary of proposed evidence. The City was directed to provide the Association with the information requested in paragraphs 1, 2, 3 and 4 of a December 23, 1994 letter from Association counsel, and with the information requested in paragraphs A, B, C, D and F of correspondence dated January 2, 1994. With respect to paragraph E, the order was to provide information relied upon by the City for the last two years.

Adequacy of Particulars: Paragraphs 22 and 23

6. The Tribunal held that the City had still not provided sufficient particulars with respect to the issue of valuation of work raised in paragraph 23 of its application. The City was directed to provide the particulars requested in paragraphs A, B, C and D of the letter dated December 23, 1994. For greater certainty, the Tribunal stated that the particulars must be given with sufficient specificity to allow the Association to know the actual flaws in the data collection and evaluation process to be relied upon by the City. In addition, the Tribunal ordered the City to provide particulars of the specific omissions or errors in evaluation to be relied upon in respect of the allegation in paragraph 23 that job content was omitted or not properly valued.

7. Although the Association initially took the position that it had not been given sufficient particulars on the issue of appropriate male comparators in paragraph 22 of the application, counsel for the Association stated in oral submissions that it was now satisfied with the particulars on this issue. The Association raised several related issues with respect to paragraph 22. The Tribunal reserved on the question of whether it could appropriately consider comparators other than those set out in the Review Officer Order. The Tribunal indicated that it might want to consider this question in the context of other issues such as: the scope of the issues before Review Services; the appropriate time frames for the comparison; the nature and relevance of agreements of the parties before Review Services. The Tribunal did not accept the submission of the Association that the only issues that could be raised in these proceedings were those outstanding issues" which were decided by the Review Officer Order under s. 16(2) of the Pay Equity Act (R.S.O. 1990, C.P.7), (the Act").

Relevance of Allegations of Procedural Unfairness, Bias, Excess of Authority at Review Services

8. The Tribunal ruled that the issues of procedural fairness, obstruction of process and bias raised in paragraphs 20 and 21 of the application were not relevant to the proceedings before the Tribunal. The Tribunal relied on the jurisprudence establishing that its proceedings were by hearing de novo and held that it would not sit in review of the process at Review Services or the conduct of the Review Officer.

9. With respect to the allegations in paragraphs 19 and 24 that the Review Officer had exceeded his authority and usurped the role of the parties, the Tribunal held that it would not hear evidence on these issues. The Tribunal accepted the submissions of the Association that s. 16(2) of the Act gave the Officer authority to decide all outstanding matters by order. The Tribunal relied on its previous decision that matters relating to the process at Review Services were not relevant in these proceedings.

10. Counsel for the City had advised the Tribunal at the November 7, 1994, hearing that he would be seeking an order referring the parties to a third party arbitrator to settle the plan. The Association, in correspondence dated December 19, 1994, advised the City that it would forthwith be seeking clarification from the Tribunal as to whether it would itself take on the task of settling the plan rather than referring it to a third party. The Tribunal advised the parties at the conclusion of the hearing on January 4, 1995, that it was expecting to issue a decision settling the pay equity plan. The Tribunal stated that in view of the amount of time that had passed since the mandatory posting date, it would not be appropriate to refer the settlement of the plan to a third party.

Next Issues

11. Before adjourning on January 4, 1995, the Tribunal identified issues to be dealt with upon reconvening on January 10, 1995. Counsel agreed that the City would attempt to provide particulars by the end of the week, so that any remaining difficulties with respect to particulars could be discussed as between counsel on Monday, January 9, and brought to the Tribunal if necessary on January 10. Counsel also agreed that the issue as to the appropriate time frame for pay equity comparisons could be argued on January 10.

ISSUES ARGUED AT THE JANUARY 10, 1995 HEARING

12. At the hearing on January 10, 1995, counsel for the Association advised the Tribunal that both counsel wished to make submissions in respect of three unresolved preliminary issues:

• the adequacy of the notice given by the City with respect to the proposed expert witness;

• the adequacy of the particulars provided by the City with respect to paragraph 23 of the application;

• the appropriate time frames for the comparison of job classes.

Expert Witness

13. Counsel for the Association advised the Tribunal that they had not yet complied with the January 4, 1995, order of the Tribunal with respect to notice of the qualifications and proposed evidence of the expert witness. Counsel for the City advised that he had simply not had time to provided the information required by the order. The Tribunal made no further ruling with respect to this issue.

Adequacy of Particulars: Paragraph 23

14. Counsel for the Association and counsel for the City both made extensive submissions with respect to the adequacy of the particulars given by the City in correspondence dated January 9, 1995.

Submissions of the Association

15. The Association submitted that the City had not complied with the Tribunal's orders of November 7, 1994, and January 4, 1995, to provide particulars for paragraph 23 of the application. Counsel advised that she was seeking an order dismissing the City's application on the basis that adequate particulars had not been provided. In the alternative, the Association was seeking an order preventing the City from introducing evidence on paragraph 23 issues. Counsel submitted that the City should not be given yet another opportunity to provide particulars.

16. The Association took the position that the particulars provided by letter dated January 9, 1995, still did not provide any information as to the substance of the allegations to be met in respect of paragraph 23. Specifically, the Association argued that the City had not given particulars as to what work requirements were not valued; what job content was omitted; how values were not equally or consistently applied; and how gender bias arose from the valuation. With reference to the order of January 4, 1995, counsel submitted that it had not been provided with particulars sought in its December 23, 1994 letter, specifically: what was the agreement with respect to the application of the Gender Neutral Comparison System to the job data; how was the job manual used incorrectly.

Response by the City

17. In response, counsel for the City led the Tribunal through the January 9, 1995 letter, and took the position that the particulars disclosed therein did provide the Association with sufficient particulars to allow it to plead its case. Counsel explained that the City was not alleging in paragraph 23 that specific job content had been omitted or undervalued, or alleging any specific error in data collection or job evaluation. The central, indeed the only, flaw alleged by the City was with respect to the process followed by the Review Officer for data collection and analysis.

18. Counsel for the City gave a brief summary of the history of the pay equity negotiations between the parties. It was his position that the parties had agreed that all male incumbents would be asked to complete a jointly designed Job Information Questionnaire" and would be trained to do so jointly by representatives of the employer and the Association. Data from the questionnaires was to be reviewed by supervisors and augmented through interviews. A joint evaluation committee would take on the task of applying the gender neutral comparison system to the data.

19. The process apparently came to a standstill on the question of which job classes should receive questionnaires after the Communications Operators and the Communications Technicians. The City took the position that the Review Officer, acting under s. 16(2), wrongly usurped the role of the parties, and followed a flawed process in deciding all outstanding issues.

20. The particulars of the alleged flaws in the Review Services process, provided in the January 9 letter and in oral submissions, are summarized below.

(a) The Review Officer did not use the questionnaire agreed to by the parties to collect data. (It was acknowledged that he did collect all the questionnaires already completed.)

(b) Training on how to complete the questionnaire was not given to all incumbents in the male job classes as agreed by the parties.

(c) Completed questionnaires were not collected from all incumbents in the male job classes.

(d) The Review Officer interviewed male incumbents who had not completed the questionnaire and who were selected for interview without agreement of the parties.

(e) The jointly designed job manual was not used correctly by the Review Officer in that the manual could only be properly used with job data collected by means of the administration of the jointly designed Job Information Questionnaire which included review and comments by supervisors".

(f) The failure of the Review Officer to follow the process allegedly agreed upon by the parties affected the gender‑neutrality of his Order by undermining the validity of the gender neutral comparison system.

The January 9, 1995 letter stated: The agreed upon gender neutral comparison system was designed to be used by a joint job evaluation committee composed of representatives of both parties, not by two male Review Officers and one female Review Officer who have no familiarity with the work of the male job classes or the female job classes and without knowledge of what is of value in the unique environment of a fire department."

21. In conclusion, the City argued that the pay equity plan was flawed by the failure of the Review Officer to follow a process agreed to by the parties, starting with data collection from all male job classes. As authority for the position that the Review Officer had to survey and compare all male job classes, counsel relied on s. 12 of the Act and the decision in Haldimand‑Norfolk (No.6) (1990) 2 P.E.R. 105. The City also relied on an Order, dated July 17, 1990, issued by another Review Officer, directing the parties to do data collection in all male job classes". In support of the argument that the Review Officer was in effect bound by the alleged agreement, counsel relied on s. 14, and the legislative onus on the parties to negotiate a pay equity plan.

Reply by the Association

22. In reply, counsel for the Association argued that the Tribunal should dismiss the application on the basis that it was now clear that there was no case disclosed by the pleadings. She argued that the submissions on particulars had clarified that the issues central to the application were matters which the Tribunal had already found not to be relevant to the proceedings in its rulings on January 4, 1995.

23. In the alternative, counsel argued that the application should be dismissed because the City had still not provided sufficient particulars and should not be given another opportunity to do so. As examples, counsel pointed out that the Association still did not have particulars as to the adjustments sought in the ratings, or with respect to the alleged agreements between the parties. Counsel argued that the Rule 1.03 of the Tribunal's Rules of Practice made it clear that the purpose of particulars was to give the other side notice of the issues to be met at the hearing.

Analysis

24. It was only in the course of the oral submissions on particulars that the Tribunal was able to clearly identify the issues which the City intended to raise in paragraph 23 of its application. On its face, paragraph 23 alleges errors in the valuation of work affecting the gender neutrality of the pay equity plan. When particulars were provided on this issue, it became apparent that the allegation was

not that the valuation was flawed in the sense that specific content was omitted, or treated erroneously. Rather, the issue behind paragraph 23 is the failure of the Review Officer to follow a particular process for data collection and evaluation, allegedly agreed upon by the parties prior to the breakdown of negotiations.

25. The focus of the particulars summarized in sections (a), (b), (d) and (e) and (f) above, is the failure to follow the alleged agreement. The City did not argue that the Review Officer was specifically required by the Act or Tribunal jurisprudence to use the jointly designed questionnaire, or to, for example, submit data to the joint evaluation committee. Rather, the submission was that the Review Officer was required by the legislation and jurisprudence to follow the agreement of the parties.

26. The submissions of the City on (c), the need to survey the incumbents in all male job classes, were somewhat different. Counsel clarified that the City was not relying only on the agreement of the parties as requiring the Review Officer to survey incumbents in all male job classes. He emphasized that the City intended to argue that the Act and Tribunal jurisprudence specifically required that a comparison be done with all male job classes.

27. The Tribunal must consider the Association's motion for dismissal in the light of this clarification of the issues raised by paragraph 23 of the application. The issue for the Tribunal is whether or not the allegations in paragraph 23 of the application disclose a prima facie case. In Peterborough (1991), 2 P.E.R. 86, the Tribunal clarified its approach on motions for dismissal in the following passage (paragraph 6).

On a motion for dismissal on the basis of failure to make out a prima facie case, a tribunal must decide whether the applicant has made out a case on the face of the written material filed as the application. For this purpose, the applicant is permitted to make its best case by treating everything it has alleged as if it were true. A failure to establish a prima facie case means that even if the applicant could prove all its allegations, the tribunal could do nothing for it because the facts alleged do not constitute a violation of the relevant statute. If the applicant's best case does not provide the basis for a remedy, the application is dismissed; if it would provide a basis for a remedy, however, the assumption of truth is forgotten: the case proceeds to permit the applicant to prove its allegations and the respondent to respond to them.

28. To apply this approach to our case, we must first of all assume that the facts alleged in the application (as supported by the particulars now provided) are true. That is, it is assumed that there was anagreement between the parties as to a particular process to be followed in developing a pay equity plan. Further, it is assumed that the Review Officer did not follow the agreed process: not all male incumbents were surveyed; interviews were conducted with incumbents who had not completed questionnaires; comparisons were not done with all male job classes; the joint evaluation committee was not used to assess data, and so on. On the basis of these assumptions, the Tribunal must consider if the facts, if proven, would constitute a violation of the statute.

29. Let us first of all consider the issue outlined in (c) above: the failure to survey and compare all male job classes. The Tribunal does not accept the submission of the City that s. 12 should be interpreted as requiring comparisons with all male job classes.

30. Section 12 requires a comparison with male job classes for the purpose of determining whether pay equity exists for each female job class". If that determination can be made without going to all male job classes, there is nothing in the statute to require the parties, or a Review Officer acting under s. 16(2), to go further. Once the potential male comparators are identified, it is unnecessary to collect further data or do other pay equity comparisons.

31. We reviewed the Haldimand‑Norfolk (No.6) decision, relied upon by the City. The decision emphasizes the need for accuracy and completeness in data collection, but does not suggest that this requires a survey of all male job classes. In any event, we note that the decision focused on the responsibilities of the parties in developing a plan. It is not helpful in considering the responsibilities of a Review Officer acting under s. 16(2). Similarly, we do not accept that the Review Officer, acting under s. 16(2), was in any way bound by the previous Order directed to the parties.

32. In the view of the Tribunal, the interpretation urged by the City is not supported by the legislation. A requirement on the parties to consider all male job classes, even after the appropriate comparators have been identified, would be contrary to the process established by s. 6 of the Act. For example, under ss. 6(1) and (2), a lower valued, higher paid male comparator can only be used for pay equity comparisons if there is no male comparator with comparable value.

33. The Tribunal finds that the alleged failure on the part of the Review Officer to survey and compare all male job classes would not, if proven, constitute a violation of the Act.

34. We turn now to the primary issue relied upon by the City with respect to paragraph 23 of the application: the failure of the Officer to follow the alleged agreement of the parties. Integral to the position of the City is a challenge to the way in which the Review Officer exercised his authority under s. 16(2).

35. The City relied on s. 14 in arguing that a Review Officer was required to follow prior agreements of the parties on questions of process. The Tribunal did not find this argument persuasive. Section 14 establishes the duty of employers and bargaining agents to negotiate pay equity, but does not in any way restrict the authority of a Review Officer acting under s. 16(2) when negotiations break down.

36. An argument could be made, based on the wording of s. 16(2), that the authority of the Review Officer to decide all outstanding matters" is limited to matters not already resolved by the parties, including questions of process. Although this point was not expressly argued at the hearing, the Tribunal considered this interpretation and found that the words outstanding matters" refer to substantive issues unresolved between the parties. Section 16(2) does not support an interpretation requiring a Review Officer to decide outstanding substantive issues in accordance with the process which the parties might have followed if negotiations had not broken down.

37. In fact, s. 16 is clearly designed to provide a mechanism for the development of a plan in situations where the negotiations of the parties are unsuccessful. The first duty of the Review Officer acting under s. 16(1) and (2) is to investigate and endeavour to effect a settlement. When this effort is unsuccessful, the Review Officer is given, in very clear language, the authority to decide by order all outstanding issues. It would make no sense for the Review Officer to be restricted by prior agreements of the parties as to how they would have handled data collection and evaluation had their negotiations not come to a standstill.

Decision on Motion to Dismiss

38. The Tribunal finds that the allegations in paragraph 23 of the application (as identified by the particulars) do not establish a prima facie case. On this basis, paragraph 23 is hereby struck from the application. It is unnecessary to decide if sufficient particulars have been provided with respect to paragraph 23 issues.

39. Even if the facts did support a finding that the process followed by the Review Officer was contrary to the statute, this Tribunal would not have heard evidence on that issue. Tribunal jurisprudence has established that the process at Review Services, and the conduct of the Review Officer, are not issues relevant to proceedings by hearing de novo before the Tribunal: Cybermedix Health Services Ltd. (1990), 1 P.E.R. 41; New Liskeard Police Association (No.1) (1990), 2 P.E.R. 39; Brampton Public Library Board (1993) 4P.E.R. 81. The Tribunal adopted this approach in its rulings on January 4, 1995.

40. It is now clear that the thrust of the paragraph 23 allegations is that the Review Officer exceeded his authority and usurped the role of the parties under the statute. This is precisely the issue which the Tribunal held on January 4, 1995, was not relevant to these proceedings. Pursuant to s. 17, the task for this Tribunal is to settle the pay equity plan.

Timeframe for the Comparison of Job Classes

41. Given the decision of the Tribunal with respect to the issues raised in paragraphs 19, 20, 21, 23 and 24 of the City's application, there is only one issue in the application which remains before the Tribunal: the question of the appropriate male comparators in paragraph 22. Both counsel made submissions on the related question of the appropriate timeframe for the comparison of job classes.

Submissions of the Association

42. Counsel for the Association asked for a ruling that the pay equity comparisons should be based on the data as of January 1, 1988 or, in the alternative, up to the mandatory posting date. She argued that the scheme of the Act required a pay equity determination as of a particular date; the date had to be prior to the mandatory posting date because the statute required that the plan be completed by that date. The mandatory posting date for this employer is January 1, 1990.

43. Counsel relied on s. 13(11) in support of the position that the comparison date assumed by the statute was the effective date defined in s. 1(1) as January 1, 1988. Section 13(11) gives immunity in respect of compensation practices in violation of the Act prior to the effective date where employers have implemented a plan by the mandatory posting date.

44. It was acknowledged that in negotiations between the parties, pay equity comparisons have often been based on whatever data has been collected, without particular reference to the statutory effective date. However, counsel submitted that, before the Tribunal, the appropriate date for comparison had to be the effective date, or no later than the posting date, in keeping with the framework of the legislative scheme. The case of Hilton Works (1993) 4 P.E.R. 76 was relied upon in support of the argument that classifications created after the effective date could be brought to the Tribunal on the basis of changed circumstances": s. 22(2)(b) of the Act.

Response of the City

45. The City took the position that this question should not be treated as a strictly legal question. Counsel argued that the only practical approach was for parties to use whatever data is current at the time of evaluation. In arguing that evaluation should be tied contemporaneously to data collection, counsel took the position that evaluations would not be reliable if, for example, a joint evaluation committee used 1988 data to do comparisons in 1995. It would be too difficult to obtain reliable data in 1995 with respect to job data in 1988 or 1990.

46. With reference to the legislation, counsel argued that it was significant that the Act had established timeframes in other areas. If the intention had been to set clear timeframes for pay equity comparisons, this would have been included in s. 5 or 6. Counsel relied on s.14(2) as establishing that pay equity was to be achieved by negotiations between the employer and the bargaining agent. This was said to be persuasive against an interpretation supporting a legislative timeframe for comparisons.

Reply of Association

47. Counsel responded to the argument of the City with respect to s. 14(2) of the Act, arguing that this section supported the position of the Association by setting a timeframe for pay equity negotiations. Section 14(2) requires the parties to negotiate a plan prior to the mandatory posting date.

48. Counsel also argued that, in the absence of a mandatory timeframe, one party could delay the process, adjust compensation practices, and then approach the Tribunal for a ruling based on current remuneration. It was argued, for example, that if a female job class was entitled to a pay equity comparator in 1988, the employer should not be able to avoid this result by delaying the process.

Decision on Timeframes for Pay Equity Comparisons

49. The Tribunal finds that, regardless of the approach which parties may take in the course of pay equity negotiations, the Tribunal must follow, as far as is practicable, the legislative scheme of the Act which is based on a pay equity comparison as of the effective date of the legislation. In so finding, the Tribunal relies in particular on the language of s.13(11) and s. 14(2). These sections only make sense in a framework which establishes a set time for pay equity comparisons, and imposes a deadline for completion of the responsibilities imposed on parties. In recognition of the negotiating period under s. 14(2), the Tribunal finds that it could, where practical, consider data up to the mandatory posting date.

CONTINUATION OF THE HEARING

50. In light of this decision, the only outstanding matter for determination is the issue of the appropriate male comparators, contained in paragraph 22 of the application. However, as a result of our decision dealing with the timeframe for determination of the potential male comparators, we ask counsel to advise the Tribunal in writing by February 17, 1995, whether it is still necessary for the Tribunal to adjudicate the issue contained in paragraph 22.