PAY EQUITY HEARINGS TRIBUNAL
0422‑93 Canadian Union of Public Employees, Local 2296, Applicant v. The Crown in Right of Ontario (Ministry of Community and Social Services), Respondent and Family and Children's Services of the District of Thunder Bay, Respondent
Before: Mary Ellen Cummings Vice‑Chair, and Members Bruce Budd and Charles Taccone
Appearances: Cathy Lace and Ian Thompson for Canadian Union of Public Employees, Local 2296 Stephen Paterson for the Crown in Right of Ontario Fred Bickford for Family and Children's Services of the District of Thunder Bay
Cite as: Thunder Bay Family and Children's Services (26 May 1995) 0422‑93 P.E.H.T.
DECISION OF MARY ELLEN CUMMINGS AND BRUCE BUDD, MAY 26, 1995
On February 7, 1994, the Canadian Union of Public Employees, Local 2296 ("CUPE") filed an application with the Tribunal requesting that the Tribunal find the Crown in Right of Ontario ("the Crown") to be the employer for the purposes of the Pay Equity Act, R.S.O. 1990, c.P.7 as amended ("the Act") of its bargaining unit members working at Family and Children's Services of the District of Thunder Bay ("Family and Children's Services").
The Crown sought a preliminary determination that subsection 1.1 of the Act prevented the Tribunal from issuing a remedy finding the Crown to be the employer of the members of the CUPE bargaining unit. The relevant portions of subsection 1.1 are as follows:
1.1 (1) For the purposes of this Act, the Crown is not the employer of a person unless the person is considered to be a civil servant, a public servant or a Crown employee under the Public Service Act.
(4) This section does not apply,
(b) if an application respecting a proceeding in which the Crown's status as an employer is an issue was filed with the Hearing's Tribunal before the 18th day of December, 1991.
A history of the these parties' dealings is necessary to understand these issues. The parties are agreed on the background facts.
On December 22, 1989, CUPE applied to Review Services, pursuant to subsection 16(1) of the Act advising of a failure to agree on a pay equity plan. It is agreed that one of the issues at that time was whether the employer of the employees in the CUPE bargaining unit was the Crown or Family and Children's Services. A Review Officer was appointed. Early on, Family and Children's Services took the position that the Review Officer had no jurisdiction to determine the employer question. The Review Officer requested the parties' submissions on that question. Prior to the completion of that process, on May 3, 1990, Family and Children' Services filed an application with the Tribunal (Tribunal file 0089‑90) in which it requested a hearing to "Determine whether review officer can adjudicate a jurisdictional issue " and to "Determine the legal issue of who is the employer for purposes of pay equity." On May 8, 1990, that application was withdrawn. It was replaced with an application (Tribunal file 0091‑90) which differed from the earlier one in only one respect; it deleted the request that the Tribunal determine who is the employer for pay equity purposes, leaving only the jurisdictional issue.
A hearing was convened and the Tribunal issued Thunder Bay Family and Children's Services, (1990), 2 P.E.R. 27 on July 13, 1990. Essentially, the Tribunal found that it was premature to determine whether the Review Officer had jurisdiction to determine the "employer" question because the Review Officer's process of investigation and endeavouring to effect a settlement pursuant to subsection 16(1) had been truncated by the application to the Tribunal. The Tribunal concluded that it would be inappropriate to consider the issue when the subsection 16(1) process had not been concluded.
The parties returned to the Review Officer who issued an order on September 20, 1990 concluding that she had jurisdiction to determine the employer question. However, before she received the parties' submissions on the substantive issue of "employer", the parties agreed to adjourn the Review Services process pending negotiations and litigation of a "who is the employer" case involving a similar agency.
On December 22, 1992, CUPE requested that the Review Services process be reactivated. On March 24, 1993, the Review Officer issued a notice of decision pursuant to 23(2) of the Act that a settlement could not be effected and that she would not be making an order. The issue the parties were discussing at that time was "who is the employer" and the impact of the pending Pay Equity Amendment Act, 1993 , S.O. 1993, c.4 (which added subsection 1.1 to the Act). Although subsection 1.1 was deemed to come into force on December 18, 1991, it had not yet been proclaimed. The Pay Equity Amendment Act was proclaimed on July 1, 1993.
On February 7, 1994, CUPE filed this application seeking a declaration that the Crown is the employer of the bargaining unit members working at Family and Children's Services. The issue we are asked to decide is the interpretation and application of subsection 1.1 to the facts in this case. The parties are agreed that none of the bargaining unit members fall within the Public Service Act. The critical question is the interpretation and application of subsection 1.1 (4)(b).
DECISION
Counsel for Family and Children's Services took no position on this question. We were much assisted by the able and thoughtful submissions of the Crown and CUPE which we will summarise throughout our reasons for decision.
Subsection 1.1 limits the Tribunal's jurisdiction to issue a remedy declaring the Crown to be the employer of persons other than those covered by the Public Service Act. Subsection 1.1 (1) states the Crown is not the employer of persons other than those covered by the Public Service Act. There are exceptions to that limitation, the relevant one being, "if an application respecting a proceeding in which the Crown's status as an employer is an issue was filed with the Hearings Tribunal before the 18th day of December 1991" [ss. 1.1(4)(b)]. The purpose of subsection 1.1 (4)(b), then, is to preserve the Tribunal's jurisdiction to issue a remedy naming the Crown as employer when the issue was pending at December 18, 1991.
The application before us in Tribunal file 0422‑93, which raises the Crown's status as employer, was filed after December 18, 1991. Therefore, in order for CUPE to succeed, it must establish that one of the other applications filed with the Tribunal prior to December 18, 1991 is enough to bring it within subsection 1.1 (4)(b).
CUPE proposed that a literal interpretation of subsection 1.1(4)(b) entitles it to proceed. CUPE argued that Family and Children's Services' first application in 0089‑90 raised as an issue the Crown's status as employer. Subsection 1.1(4)(b) does not require anything more than that an application was made, so the criteria have been met. That the application was subsequently withdrawn is immaterial.
It is clear that 0089‑90 was filed and raised the issue of the Crown's status as employer. It is equally clear that the application was withdrawn. The withdrawal disposed of that application, so it cannot be said that it was still pending on December 18, 1991.
That takes us to Tribunal file 0091‑90. Family and Children's Services raised the issue of the Review Officer's jurisdiction to determine "who is the employer". While Family and Children's Services did not put "who is the employer" in issue in its application, it was raised by CUPE and the Crown in their responses which were part of the Tribunal's proceeding. CUPE's Response argued that the Review Officer had jurisdiction, but as an alternative said:
"...if the Tribunal should decide that a Review Officer has no jurisdiction to determine the question in dispute between the parties, it is submitted that the Tribunal should decide the question. Simply put, if the Review Officer does not have such jurisdiction the Tribunal is the only forum in which the issue can be resolved so that a pay equity plan can be prepared..."
- One of the remedies open to the Tribunal at that point was to find that the Review Officer did not have jurisdiction to decide "employer". If that had been the result, the Tribunal would have gone on to decide who is the employer. In the Response of the Crown, this position is set out clearly:
It is submitted that a proper determination of who is the employer must be a process whereby all evidence is properly submitted and witnesses are available for cross‑examination. It is submitted that as the Tribunal is governed by the Statutory Powers Procedure Act, it is an appropriate forum for such a determination.
- The written submissions of Family and Children's Services said:
To the extent that it is our submission that only the Hearings Tribunal has jurisdiction to adjudicate this type of issue, we intend simultaneously with the delivery of this argument to file application for hearing before the Hearings Tribunal for the specific purpose of having the Hearings Tribunal decide the outstanding dispute between Family and Children's Services of the District of Thunder Bay and CUPE as to who is the employer.
Although that application was not made, these submissions show that Family and Children's Services anticipated that the Tribunal would resolve the "employer" question. All parties agree that the issue that took them to Review Services was a dispute about "who is the employer". The Tribunal's decision at paragraph 1 similarly identified the issue at Review Services:
It is evident that Family and Children's Services, the Ministry and C.U.P.E. were at odds as to the identity of the employer...
We conclude that the issue of "employer" was the fundamental issue both at Review Services and in the Tribunal's proceeding in file 0091‑90. Although the Tribunal's decision meant that the Tribunal did not have to decide "employer" at that time, it does not change the fact that it was an issue in the proceeding.
We further conclude that the proceeding was not disposed of. The Tribunal determined that the application was premature, and in paragraph 27 said:
This determination is without prejudice to the applicant's bringing this matter before the Tribunal at a later stage...
The panel did not dismiss the matter, in fact, it remained seized.
The intent of subsection 1.1 (4)(b) was to ensure that parties involved in an ongoing proceeding at the Tribunal, who had filed an application before December 18, 1991 did not get "caught" part way through their proceeding by the impact of the amendments. In this case, the "employer" question was part of the proceeding in file 0091‑90 and the application was filed before December 18, 1991. For this reason, this case is distinguishable from Kenora‑Patricia Child & Family Services (1993), 4 P.E.R 79, where no applications had been made to the Tribunal before December 18, 1991.
In our view, the application in Tribunal File 0091‑90 is enough to permit CUPE to proceed with its application. The issue of "employer" has not yet been determined by the Tribunal, and it was an issue raised in a proceeding in which "an application" was filed before December 18, 1991. In reaching this decision, we have focused on the particular language of the subsection, and our understanding of its intention. We have reached this decision with some difficulty. As the Crown argued, the issue that was presented to the Tribunal by Child and Family Services in Tribunal file 0091‑90 focused on the jurisdictional issue. However, the "employer" issue was also raised in those proceedings, and for the purposes of deciding the applicability of subsection 1.1 (4)(b), it is not appropriate to characterise issues as being central or peripheral; all that section 1.1 (4)(b) requires is that the Crown's status as employer was "an issue".
We also considered that the application in this matter is not the same application upon which CUPE relies to give us jurisdiction. The application before us was filed after December 18, 1991. However, subsection 1.1(4)(b) requires only that "an application" be filed before December 18, 1991, and that has happened here. Further, the issue of "employer" is the same in both applications; it is not as if CUPE is trying to rely on the earlier application to raise different issues. Determining who is the employer has been central to these parties throughout.
Finally, we also considered general principles of statutory interpretation. Disentitlement provisions should be read narrowly, and re‑entitlement provisions should be read broadly.
In conclusion, subsection 1.1 (4)(b) applies in this case, and CUPE's application may proceed. We will ask the Registrar to contact the parties to arrange for a Pre‑hearing Conference before scheduling further hearing dates. This panel is not seized.
DECISION OF TRIBUNAL MEMBER CHARLES TACCONE, MAY 26, 1995
I dissent from the majority decision which concludes that subsection 1.1 (4)(b) applies and CUPE's application may proceed to have the Crown named as the employer. My reasons for this decision follow.
I do not think the identity of the employer was an "issue" in the Tribunal's 0091‑90 file. There is no doubt that it was an issue between the parties but in my view it was not an issue in an application filed with the Tribunal prior to December 18, 1991. Further, it was not a matter in dispute between the parties for which they sought a hearing and for which the Tribunal was asked to make a finding.
I recognise that in the pleadings CUPE did frame the question of who is the employer for the Tribunal to address, but only in the alternative and, most importantly, as a conditional, i.e., the question of who is the employer would be made into an issue for the Tribunal to decide if, and only if:
...the Tribunal determines that the Review Officer is without jurisdiction to determine the question of identity of employer/definition of establishment, the Respondent requests that the Tribunal determine that question. (Response to Request for Hearing, section 7 Remedy, p 6 , File 0091/90).
At that stage of pleadings, it was not an issue under consideration at the Tribunal.
For the question of who is the employer to have been a bona fide issue, certain things would have to have taken place at the hearings that would have rendered the question a de facto issue. No evidence probative of the matter was heard and no decision on the matter was rendered.
My reasons are based on:
· the definition of "issue";
· subsection 1.1(4)(b) of the Act; and
· the Tribunal's own jurisprudence.
DEFINITION OF ISSUE
- On the definition of issue the leading case is, Howell v. Dering [1915] 1 K.B. 54 (C.A.). This case discussed the meaning of the word issue in determining whether the action brought by a plaintiff constituted separate issues and were consequently separate events. A scenario of separate issues would have resulted in the non‑entitlement of the plaintiff to costs against the brokers.
Buckley L.J. noted at pages 62 and 63 (and I quote at length):
It is impossible to say that every question of fact which is in dispute between a plaintiff and a defendant is an "issue." The word can be used in more than one sense. It may be said that every disputed question of fact is in issue.
It is in a sense, that is to say, it is in dispute. But every question of fact which is "in issue" and which a jury has to determine is not necessarily "an issue" within the meaning of the rule. I should define "issue" for the purposes of this rule in some such words as these: An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defense. ...Suppose that the defendant does not appear at the trial, an "issue" is that which the plaintiff must prove in order to entitle him to relief. An isolated question of fact is not an "issue." An "issue" is that which results in a determination or adjudication in favour of one party or the other.
- From my reading of the above, I take the essential predicate of the definition of issue to be: a matter in dispute between the parties for which a hearing is requested and a decision expected.
THE ACT (Subsection 1.1 (4)(b))
- By adding s 1.1 to the Act the Legislature limited the reach of the Crown, as employer, to those employees covered by the Public Service Act s 1.1 (1). The Legislation however recognised that in some circumstances this limitation would have an unfair result. One of those circumstances is set out in subsection 1.1 (4)(b):
Application. ‑ This section does not apply,
(b) if an application respecting a proceeding in which the Crown's status as an employer is an issue was filed with the Hearings Tribunal before the 18th day of December, 1991.
In my view this section should not be liberally interpreted. The question of the Crown's status as an employer must have been an issue that had motivated a request, prior to the 18th of December 1991, for a hearing before the Tribunal. If such a hearing was still in progress or awaiting a decision, this subsection would not interfere; otherwise, this subsection prevents the issue from being adjudicated by the Tribunal after the stated date.
If the question of who is the employer was an issue for which a hearing was requested before the 18th of December, 1991, there can only be a number of determinable alternatives. Either the matter is decided, or the matter is open. If the matter is decided, the question of who is the employer cannot be an issue now. If the matter is open, either the Tribunal is still hearing evidence or it has heard evidence and is now in the process of rendering a decision. I see no other alternative if I am to hold as necessary the defining characteristic of issue, i.e., a matter in dispute for which a hearing is requested and a decision expected. If therefore file 0089‑90 was still outstanding and not withdrawn, I would have decided differently; however, as the majority has recognised in paragraph 13 of its decision, that application was withdrawn and the parties chose to proceed with only a single issue to the Tribunal ‑ that of jurisdiction.
TRIBUNAL'S JURISPRUDENCE
- While the Tribunal has not previously dealt with the issue before us, there are several decisions which I found helpful in my analysis. The clearest expression of the Tribunal's position on what is properly at issue is Scarborough (No. 1) (1994), 5 P.E.R. 45, at paragraphs 16 and 17.
In paragraph 16, the Tribunal states:
What is substantively at issue in any application to the Tribunal is a function of several variables:
the substantive issues the parties took to Review Services;
any additional issues the Review Officer may have raised and decided by order or referred to the Tribunal;
the issues the parties raised in their pleadings to the Tribunal; and
any agreements the parties may have reached subsequent to the close of pleadings.
And in paragraph 17, the Tribunal elaborated as follows:
Items (1) and (2) determine the outermost parameters of the issues that may come before us. In other words, we can deal with anything that was dealt with by the Review Officer. That does not mean, however, that we always hear evidence about and inquire into everything that was before the Officer.
- Also, in the Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50, at paragraph 10, the majority of the panel states:
Consequently, in an oral ruling we asked the parties to lead evidence and argument on what issues they had intended to deal with at Review Services. This decision then, determines what issues we find are before us. In addition, we have determined what issues are outstanding between the parties in order to decide how best to proceed to hear this matter.
In the Scarborough decision, the Tribunal does not wish to be bound either by accidents of pleading or the Review Officer's order. The Tribunal can and will determine what issues it finds are properly before it, as long as they are within the outermost parameters.
To return to the case which is the matter before us now, it is instructive to review the Tribunal's decision in Thunder Bay Family and Children's Services (1990), 2 P.E.R. 27, to determine what the Tribunal saw as the issue(s) before it, peripheral or otherwise, for which it heard evidence and towards whose resolution it turned its mind.
In paragraph 2, the Tribunal states:
There were, then, two questions before us. The 'main' or substantive question is the subject of the application to the Tribunal: does a Review Officer have jurisdiction under the Act to determine who 'the employer' is? The second question was raised as an objection to our hearing the main issue, at least at this time: is it appropriate for the Tribunal to determine the question of the Review Officer's jurisdiction given the stage of the Review Service process at which the application was filed with the Tribunal
And, further, in paragraph 4:
...our decision does not address either the jurisdiction of the Review Officer to determine 'the employer' or the scope of our limitations on the Tribunal's jurisdiction to determine 'the employer' (which issue was raised by C.U.P.E. as a concomitant to the Review Officer's legal competence to decide the question). Put another way, we have restricted our analysis at this stage to whether, in the circumstances of this case, the matter of the Review Officer's jurisdiction is properly before the Tribunal.
- In paragraph 15, the Tribunal concludes:
It is clearly not available to give the Tribunal jurisdiction over any matter simply because a party places the matter before the Tribunal. ... It may be that there are circumstances in which the 'employer question' could properly be brought directly to the Tribunal; however, we believe that that determination should not be made, at least in the first instance, when the settlement process at Review Services has been almost completely disregarded, as it has here. (emphasis added).
The question of who is the employer was, unquestionably, the underlying factor responsible for the parties being before the Tribunal. The Tribunal heard evidence on: the jurisdiction of the Review Officer to decide who is the employer and the appropriateness for the Tribunal to determine the Review Officer's jurisdiction given the stage of the Review Service process at which the application was filed.
The Tribunal did not frame the employer question as an issue for it to hear evidence on and dispose of in this case. The decision reflects this and is fundamentally different in tenor and content from those decisions where the issue of who is the employer was clearly before it. For example, Haldimand‑Norfolk (No. 3) (1989), 1 P.E.R. 17; Barrie Public Library Board (1991), 2 P.E.R. 93; Porcupine Health Unit (No. 2) (1991), 2 P.E.R. 198; Kingston and Frontenac Children's Aid Society (No. 2) (1992), 3 P.E.R. 117; Hilton Works (No. 2) (1993), 4 P.E.R. 17; Hilton Works (No. 3) (1994), 5 P.E.R. 34; Welland Public Library (1994), 5 P.E.R. 60.
Subsection 1.1 (4)(b) demands that the Employer's status be an issue filed with the Hearings Tribunal.
Paragraph 17 of the majority's decision states:
We conclude that the issue of "employer" was the fundamental issue both at Review Services and in the Tribunal's proceeding in file 0091‑90. Although the Tribunal's decision meant that the Tribunal did not have to decide "employer" at that time, it does not change the fact that it was an issue in the proceeding.
The question of who is the employer was fundamental at Review Services. At the Tribunal, the fundamental question that was brought to the Tribunal as the issue was whether a review officer can adjudicate a jurisdictional issue. However, the union, in the alternative, added that "...if the Review Officer does not have such jurisdiction the Tribunal is the only forum in which the issue can be resolved..." It seems to me, therefore, that the question of who is the employer was not made into an issue by the union, but rather into an alternative inviting the Tribunal to make it into a resolvable issue by its decision. The Tribunal never made the question into an issue, did not hear evidence on it, and did not turn its mind at all to its possible resolution within its area of jurisdiction.
DECISION
- I am therefore of the view that subsection 1.1 (4)(b) does not allow CUPE's application which seeks to have the Crown in Right of Ontario to be named as the employer, for the purposes of the Pay Equity Act, R.S.O. 1990 , c.P.7 as amended, for bargaining unit employees at the Family and Children's Services of the District of Thunder Bay.