PAY EQUITY HEARINGS TRIBUNAL
0348-92 Group of Employees, Applicants v. Ontario Public Service Employees Union, Respondent and Crown in Right of Ontario (Management Board Secretariat), Respondent
Appearances: Leslie Dizgun, Rita Schreiber and Susan Dunbar for Group of Employees Elizabeth Shilton, Harriet Simand and Janet Wright for Ontario Public Service Employees Union David Costen and Pat Werner for Crown in Right of Ontario (Management Board Secretariat)
Before: Phyllis Gordon, Chair and Members Geri Sheedy and Margaret Kvetan
Cite as: Management Board Secretariat (No. 4) (1 December 1995) 0348-92 (P.E.H.T.)
DECISION OF THE TRIBUNAL, DECEMBER 1, 1995
At the case management meeting held on August 26, 1995, Counsel for the Applicants announced that his clients were withdrawing their complaint against their bargaining agent, OPSEU, and only pursuing their complaint against their employer, the Crown. The Tribunal did not permit the complaint to be withdrawn as suggested but rather treated the Applicants' stated intention as a request for leave to amend their pleadings. We asked all Counsel several questions, and set out a time-frame for written responses, the last of which we received on October 20, 1995. These submissions indicate that OPSEU supports the Applicants' position and that it requests intervenor status in these proceedings. OPSEU has not clarified the nature of intervention it seeks. The Crown opposes the withdrawal of the complaint against OPSEU and submits that the logical conclusion of such a withdrawal request is that the case against the Crown should be dismissed. This decision considers these matters.
The Applicants' motion to withdraw their complaint against OPSEU is denied. While many strategy decisions are left to the parties involved in pay equity litigation, the identification of the parties to a complaint is not. Section 32(1) of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (the "Act") specifies who the parties to a complaint are when a matter is at Review Services or when a hearing is held before the Tribunal. These are: (a) the employer; (b) the objector or complainant; (c) the bargaining agent (if the pay equity plan relates to a bargaining unit) or the employees to whom the plan relates (if the plan does not relate to a bargaining unit); and (d) any other persons entitled by law to be parties. This provision sets out who are the necessary parties in particular workplace situations. Identification of parties is not optional. Analogies to the practice in the courts are not helpful as generally the Rules of Civil Procedure do not specify the parties to an action.
This case well illustrates the policy behind the clear statutory language. It is a complaint by certain members of the bargaining unit that their pay equity plan violates the Act, and that the comparison system which is the basis of the plan is not gender neutral. Both of the Respondents negotiated the selection of the comparison system and the pay equity plan. Throughout, the responsibility for pay equity has been jointly undertaken, in accordance with the scheme of the Act. In these proceedings the Union has taken the position that the plan meets the requirements of the Act and has consistently defended the pay equity process it undertook with the Employer. It would now be inappropriate to focus on one participant in the context of a statutory scheme in which the bargaining agent and the employer are partners in the negotiation of a gender neutral comparison system and a pay equity plan.
The characterization of OPSEU's role as an intervenor rather than a party does not assist to advance this hearing. The proceedings would no doubt be further delayed in order to determine the nature of OPSEU's novel participation as intervenor. Several unanticipated legal problems might emerge as a result of the differences between intervention and party status. For example, the extent to which a bargaining agent who is merely an intervenor has the authority to enter into settlement discussions both at Review Services and the Tribunal is likely problematic. Moreover, in the pay equity context, having party status does not necessarily import liability if the Applicants are successful on the merits. The issue of which Respondent is liable for any remedy to which the Applicants may be ultimately entitled will be determined at that time.
The Employer submits that the complaint against it should be dismissed as a result of the Applicants' wish to discontinue the complaint against the Union. There is some merit to the logic behind this submission: either the Application proceeds with both the Union and the Employer as Respondents; or, it is withdrawn or dismissed with respect to both Respondents. However, as the Application will not be proceeding without OPSEU being a named party, it is not necessary to dismiss the complaint against the Crown.
Counsel for the Applicants also represents another group of employees who work as nurses at North Bay Psychiatric Hospital. Some time ago, these employees commenced an Application similar to the one before us in which the Respondents were also the Crown and OPSEU. In Group of Employees at North Bay Psychiatric Hospital (26 May 1993) 0421-93 (P.E.H.T.) the Tribunal stayed the Application pending the outcome of the preliminary matter in File No. 0348-92, the present Application. Counsel has suggested that as this hearing will consider the merits, it is appropriate to formally include the North Bay employees within the present applicant group of employees who are also nurses employed at other provincial psychiatric institutions.. Counsel for the Employer and the Union have not raised any objection to this suggestion. We agree this is appropriate and order that the employees who were the applicants in File No. 0421-93 be included within the present group of employee applicants in File No. 0348-92. File No. 0421-93, which was administratively closed, will remain closed.
Counsel for the Applicants also referred to a group of nurses who are employees at Brockville Psychiatric Hospital who wish to be added to this complaint. Subject to our jurisdiction to do so, we will decide whether to include them in this Application if Counsel advises in writing about the status of their complaint within the pay equity process, and if both Respondents provide their written consent that we do so. We will not however delay these proceedings in order to add these employees. Therefore, if Counsel wishes to pursue this addition, he is to file this material by December 15,1995.
Counsel for the Applicants raised other procedural issues at the case management meeting. He was advised then to set out any other matters requiring initial rulings when he forwarded his submissions on the motion for withdrawal against OPSEU. As he has not done so, we assume that his concerns have been resolved. Counsel for the Applicants is to provide a list of witnesses to the Respondents at least one week before the hearing begins, who will then provide the Applicants' Counsel and each other with their witness lists prior to the first day of hearing. Each Counsel is to advise us of the hearing time needed and to take all steps possible to reduce hearing time, including filing of witness statements where appropriate. If any party intends to file expert reports in addition to those previously filed with the Tribunal they are to do so in accordance with our Rules. There has now been more than ample opportunity for the sorting out of preliminary matters. Unless there are extraordinary circumstances, the Applicants' case is to begin on January 8, 1996.