Corporation of the City of Brampton v. Brampton Firefighters Association, 1995 CanLII 7208

PAY EQUITY HEARINGS TRIBUNAL

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

Before: Catherine Laird, Vice‑Chair and Members Margaret Kvetan and Bruce Budd

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

Cite As: Brampton (May 25, 1995); 0500‑90 (P.E.H.T.)

DECISION OF THE TRIBUNAL, MAY 25, 1995.

INTRODUCTION

1. The application before the Tribunal in this proceeding is brought by the City of Brampton (the City") for a decision under s.17(1) of the Pay Equity Act, settling the pay equity plan in respect of the employees represented by the Brampton Professional Firefighters Association (the Association"). An application by the Association was withdrawn on January 4, 1995. The Tribunal has issued two previous decisions in respect of this proceeding on December 8, 1994 and January 27, 1995.

2. By oral ruling on January 4, 1995, we dismissed a number of issues raised in the City's application on the basis that they were not relevant to the determinations properly before the Tribunal in a hearing under s. 17(1) of the Act.

3. In the decision released on January 27, 1995, we dismissed all the remaining issues raised by the application, except one, on the basis that a prima facie case had not been established. The remaining issue, raised in paragraph 22 of the application, concerned the question of appropriate male comparators as follows:

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

4. By letter dated April 11, 1995, counsel for the City sought to amend its application to add the following:

It is submitted that there is no consistent documentation of the job requirements of any of the jobs evaluated by the Review Officer. Job questionnaires were completed by members of the Communications Operator job class and the Communications Technician job class. There is no documentation describing the job requirements of the Firefighter job classes or the Mechanic First Class job class.

It is submitted that the ratings cannot be replicated based on the available documentation for the positions of Communications Operator and Communications Technician.

Furthermore, it is submitted that the ratings for the Firefighter job classes and the Mechanic First Class job class cannot be replicated owing to the fact that there is no documentation describing the job requirements of these job classes.

It is submitted that the inability to replicate the ratings calls into question both the reliability and validity of the ratings of all the jobs evaluated. There is no basis for determining whether pay equity exists contrary to Section 12 of the Pay Equity Act.

It is submitted that the inconsistent documentation describing the job requirements of the relevant job classes impairs the employer in its responsibility to establish pay equity and prevents the employer from maintaining pay equity contrary to Section 7 of the Pay Equity Act.

5. In correspondance dated April 12, 1995, the Association took the position that the City had no right to amend its application, and, further, that the issues raised in the amendments were, in fact, the same issues that had already been dismissed by the Tribunal. In addition, the Association asked the Tribunal to dismiss the outstanding issue in paragraph 22 of the application.

6. The hearing was reconvened on April 21, 1995, at which time the Tribunal heard submissions on the City's motion to amend its application and the Association's motion to dismiss. The submissions of the parties are set out below.

SUBMISSIONS

(i) Amendment of the Application

Submissions for the City

7. The City took the position that, as applicant, it was entitled to amend its application as of right because the hearing had not yet commenced on the merits. In the alternative, counsel argued that the Tribunal should exercise its discretion to allow the amendments as no prejudice to the Association would result.

8. Counsel submitted that the Tribunal's Rules of Practice were silent on the amendment of pleadings. Relying on Rules 15.05 and 15.02 of the Tribunal's Rules, and Rule 2.01 of the Rules of Civil Practice, counsel argued that the Tribunal should apply the principles developed by the courts with respect to the amendment of pleadings. Counsel submitted that, under Rule 26 of the Rules of Civil Practice, amendments of pleadings are to be allowed unless prejudice to the other party is shown which cannot be compensated by costs or an adjournment.

9. Counsel noted that the Association had been given notice in the original application that the City might seek to revise its pleadings. Paragraph 25 of the application reads as follows:

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.

10. Counsel also submitted that the facts forming the foundation for the revisions were included in paragraph 13 of the application, and that, accordingly, the Association had notice of the issues raised by the amendments. Paragraph 13 reads as follows:

The employer is unaware of the rationale or foundation for the choice of male comparators chosen by Mr. Chyczij and his collegues, the job data used, the details or mechanics of the job comparison process or the basis of the job evaluation findings of the job comparisons that appear in the order of February 7, 1994.

11. Counsel also made specific submissions in relation to the substance of the proposed amendments. In particular, he dealt with an error by the Review Officer, acknowledged by the Association with respect to the incumbent in the Mechanic (1st Class) position. He argued that the employee interviewed by the Review Officer for this job class, a Mr. Hatton, was not at that time a Mechanic (lst Class). This error resulted in the position not being rated and, in the City's submission, should call into question the rest of the data collected by the Review Officer and the other ratings. Counsel confirmed that there was no incumbent in the Mechanic (1st Class) job class on January 1, 1990.

12. Finally, counsel submitted that there was no evidence on how the ratings had been achieved and that there was no baseline from which to work to maintain the plan. He argued that all the ratings, done in 1992, were nullified by the Tribunal's January 27, 1995 decision that the timeframe for pay equity comparisons was up to the mandatory posting date.

Submissions for the Association

13. In response, the Association argued that the Tribunal's Rules of Practice did in fact deal with amendment of pleadings in Rule 1.03 which provides:

1.03 Except with the Tribunal's permission, an Applicant may not raise any issue, fact or event not set out in its applicaton.

14. On the basis of Rule 1.03, the Association submitted that an applicant seeking to amend its pleadings before the Tribunal is in the reverse position of a plaintiff before the courts: permission to add and argue an issue not previously pleaded will only be allowed as the exception. Moreover, counsel pointed out that the Rules of Civil Procedure contemplate compensating for resulting delay through costs, an option not open to the Tribunal.

15. Counsel argued that the Tribunal should not give the City permission to amend the application. She took the position that neither paragraph 25 nor 13 of the application established a basis for allowing the amendments. The issues raised in the proposed revisions were said to extend well beyond what could be read into those paragraphs in the original pleadings. On the contrary, the Association argued that the issues sought to be added to the application were, in fact, the same issues with respect to the Review Services process which the Tribunal had already dismissed.

16. The Association submitted that the Tribunal's Rules of Practice were aimed at providing parties with an efficient hearing process. An amendment at this stage was unfair to those women who were entitled to pay equity adjustments under the Review Officer's Order.

17. With respect to the Mechanic (1st Class), counsel characterized this matter as a mislabelling error. Mr. Hatton, who had been interviewed for this job class, was not a certified mechanic. He was a firefighter who had assumed body and paintwork duties, but continued to be paid at the 1st Class Firefighter rate. His position had been misnamed Firefighter/Mechanic. There was no suggestion that he should have been a comparator.

18. Finally, it was counsel's position that it could not be argued that the Review Officer's Order was based on 1992 data as there was no evidence as to the date used by the Review Officer.

(ii) Paragraph 22

Submissions for the Association

19. Counsel for the Association argued that the Tribunal had no facts before it which, if proven, would establish that using different comparators would produce a better result.

20. On the question of appropriate male comparators, counsel referred to a letter dated December 21, 1994 from counsel for the City in which, pursuant to a ruling by the Tribunal, particulars are given with respect to paragraph 22:

...the employer believes that the appropriate male comparator job classes to be evaluated for the purpose of determining the pay equity entitlement of the Communications Operator job are:

1st Class Firefighter (single job class) 2nd Class Firefighter (single job class) 3rd Class Firefighter (single job class) 4th Class Firefighter (single job class) 1st Class Fire Prevention Officer (single job class) 2nd Class Fire Prevention Officer (single job class) 3rd Class Fire Prevention Officer (single job class) 4th Class Fire Prevention Officer (single job class) Community Relations Officer (single job class) Communications Technician (single job class) Mechanic (single job class) Training Officer (single job class)

21. Counsel then addressed each of these job classes with reference to the Order and/or the Association's Collective Agreement which includes classifications and their salaries for 1989 and 1990. In her submissions, counsel relied on the January 27, 1995 decision (paragraph 49) in which the Tribunal found that comparisons for pay equity purposes should be as of the effective date of the legislation up to the mandatory posting date of January 1, 1990.

22. The four classes of Firefighter, the Communications Technician and the Mechanic were rated in the Order as potential male comparators. These classifications also appear in the Collective Agreement. However, although salaries with an effective date of January 1, 1989 are listed for the Firefighters and Communications Technicians, there is no salary listed for Mechanic until July 1, 1989. It was counsel's position that, although this classification existed, there was no incumbent until March 1990 and, therefore, this job class was not relevant for pay equity purposes.

23. Counsel submitted that the Fire Prevention Officers, the Community Relations Officer and the Training Officer were included in neither the Order nor the Collective Agreement, as these classifications did not exist on January 1, 1990 and, therefore, were not potential male comparators.

24. In conclusion, counsel submitted that the Review Officer did compare appropriate job classes and that there was nothing left in the City's application to adjudicate.

Submissions for the City

25. Counsel did not deal at length with the specific submissions of the Association on the appropriate comparator. He argued that other male comparators not examined by the Review Officer should have been used, although he did not present alternatives at the hearing. It was his position that the question of what the plan should be was a matter for evidence and not for pleadings.

REASONS

(i) Amendment of Application

26. We find that, in accordance with Rule 1.02, an application can only be amended, after the commencement of the hearing, with the permission of the Tribunal. The applicant is not assisted by having attempted to reserve a right to amend in its application. Indeed, the right claimed by the City was in respect of new information that might be forthcoming about the process at Review Services. No such information has been provided and, indeed, the new amendments focus on the apparent opaqueness of the Review Officer Order. Counsel cannot argue both ways.

27. With respect to the argument that the facts supporting the amendments were in the original pleadings, we find that paragraph 13 of the application does not provide a sufficient basis for the issues now raised. Paragraph 13 deals with the job comparison process, while the amendments focus on documentation of job requirements. In any event, the Rules are clear in distinquishing facts and events from issues, and requiring that all issues be specifically pleaded.

28. Moreover, we find that the issue of pay equity maintenance, included in the amendments to the pleadings, is premature. It is not appropriate to raise issues with respect to maintenance of pay equity, when the initial pay equity plan has not yet been finalized. Maintenance issues are a matter for future negotiation between the City and the Association. Even if we were not otherwise refusing to allow the amendments, we would strike this issue from the pleadings.

29. We do not accept the argument that all the ratings are invalid because they were done by the Review Officer in 1992. There is no evidence as to the timeframe for the data relied on by the Officer and we only assume that it was within the appropriate period. Regardless, we do not agree that the Review Officer's Order could be nullified by the January 27, 1995 decision of the Tribunal.

30. The purpose of the Tribunal's Rules, and, in particular, the requirement that the parties plead all the issues, is to ensure that proceedings before the Tribunal proceed in a timely and efficient process, consistent with the principles of fairness. In this case, we have had a pre‑hearing conference and four days of hearings in which preliminary issues were fully argued. In particular, a great deal of hearing time has been spent attempting to clarify the scope and relevance of the issues raised by the application. To allow an amendment at this stage would undermine that time, effort and the very purpose of the Tribunal's Rules. On this basis, we decline to do so.

31. In our view, the City's application has been based on a misconceived notion of how the Review Services process should operate. If we look at the specific allegations which the City now wants to add to their application, we can see that they amount to a complaint that the City does not know on what basis the Officer made his determinations. The City is alleging that the determinations must be wrong because they have been unable to replicate them. The City states that this opaqueness makes it impossible to implement and maintain pay equity.

32. We do not accept this approach. A review officer brought into deadlocked negotiations under s. 16(1), does not serve as a kind of consultant to the parties. His/her job is to attempt to effect a settlement and, failing that, to decide all outstanding matters. It is not a review officer's job to make determinations according to the process which the parties might have followed (see the January 27, 1995 decision) or to share his/her background analysis or working data with the parties. If parties want that kind of control over the development and content of a pay equity plan, they had best negotiate it to completion.

33. We are also of the view that the City has misconceived the role of the Tribunal in hearing an application under s. 17(1). When a party objects to a pay equity plan posted in accordance with a review officer's order, the Tribunal is required to hold a hearing. Tribunal jurisprudence has established that a hearing de novo will be held into any properly pleaded issue which was at issue at Review Services. The Tribunal does not review the process followed by a review officer or sit as an appeal tribunal to consider the merits of the determinations made by the officer. The Tribunal hears evidence in respect of substantive issues which were in dispute before the review officer and which are raised in the application before it.

34. The issues which the City is attempting to add to its application are not substantive issues. If the City did not understand the basis of the Order, it could, nonetheless, have come to the Tribunal with substantive recommendations about how the Order could be changed. After all, a party or its consultant can communicate with the Review Officer at least until release of the Order. The substantive issues identified in Review Services process could have been brought to the Tribunal through a properly pleaded application. The Tribunal would then have been in the position to hold a hearing to settle the pay equity plan.

35. Instead, the City appears to have, in essence, thrown up its hands and pleaded that the Order simply made no sense and was the result of a flawed process. The result is that the application has failed to raise a case for the respondent to meet.

(ii) Paragraph 22

36. Counsel for the City, in his submission, did not refer specifically to the other male comparators which, allegedly, should have been examined by the Review Officer. In her submission, counsel for the Association demonstrated that all the male job classes that existed up to and including the mandatory posting date of January 1, 1990 were reviewed and rated by the Review Officer and are included in his Order.

37. In the Order, the male comparator for the female job class of Communications Operator was found to be Firefighter (2nd Class). The Communications Operator was rated at 609 points. The point spread between this job class and the male job classes is:

Job Class Points Difference Firefighter (1st Class) 714 +105 Firefighter (2nd Class) 620 + 11 Firefighter (3rd Class) 576 ‑ 33 Firefighter (4th Class) 510 ‑ 99 Mechanic 414 ‑195 Communications Technician 435 ‑174

38. We are satisfied that all the male comparators that could have been considered up to January 1, 1990 were considered and rated by the Review Officer. Accordingly, we strike paragraph<SP>22 from the application.

DECISION

39. The Tribunal declines to exercise its discretion to allow the City to amend its application.

40. The Tribunal dismisses paragraph 22 of the application of the City.

41. There being no outstanding issues raised by the application of the City, this proceeding is hereby terminated.