PAY EQUITY HEARINGS TRIBUNAL
0466‑93 The Pay Equity Office, Applicant and Hamilton Civic Hospitals, Canadian Union of Public Employees, Local 794, Respondents
Before: Phyllis Gordon, Chair and Members Bruce Budd and Margaret Kvetan
Counsel: Carrie Gallant for the Pay Equity Office; Robert Salisbury for Hamilton Civic Hospitals; Nancy Rosenberg for C.U. P. E.
Cite As: Hamilton Civic Hospitals (No. 2) (May 31, 1996), 0552-95 (P.E.H.T.)
DECISION OF PHYLLIS GORDON, CHAIR AND MEMBER MARGARET KVETAN, MAY 31, 1996
The Pay Equity Office has requested that the Tribunal reconsider its decision of May 8, 1995 in Files 0466-93, 0482-94, 0490-94, 0502-94,0516-94, 0517-94, 0532-94 and 0534-95, cited as Hamilton Civic Hospitals (No. 2) (1995), 6 P.E.R. 86. This request, made under s. 30(2) of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (the “Act”), was filed on August 18, 1995 and included extensive submissions regarding reconsideration. Following the filing, issues arose regarding service and pre-hearing options. Following their resolution, the Tribunal advised the Pay Equity Office (the “Office”), the Union and the Employer that it would first consider whether to exercise its discretion to reconsider the decision and directed written submissions from the Union and the Employer, directing their attention to whether the Application of the Pay Equity Office meets the test for reconsideration in light of Tribunal jurisprudence on this issue.
The Office bases the request for reconsideration on two grounds:
∙ the decision of the majority of the Tribunal was wrong in law in its interpretation of subsections 25(1.1) and 25.1(1) of the Act and in its application of the decision in Scarborough (No.2) (1994), 5 P.E.R. 87 ; and
∙ the Office did not have an opportunity to make submissions to the Tribunal regarding the appropriate disposition of the Office’s application to enforce the Review Officer’s Order (Tribunal file No. 0466-93).
THE HISTORY
The Employer Hospital applied to the Tribunal pursuant to s. 24(6) of the Act, seeking revocation of the Order of the Review Officer. After it was served with the Application, the Pay Equity Office advised in a letter that it would not be seeking standing to participate at the hearing or responding to the Application. The Office had filed an earlier Application seeking enforcement of the same Order. In the letter regarding the Hospital’s Application it added that “pending the outcome of the Hospital’s Application, the Office will not be proceeding to a hearing on its Application to enforce the Order of the Review Officer”. On this basis the Employer's application was scheduled for hearing.
Prior to the hearing on the merits, the Employer and the Union - the parties with the responsibility to negotiate and post a pay equity plan - concluded their negotiations and advised the Tribunal at the hearing that they considered their negotiated plan a binding settlement within the meaning of s. 25.1 of the Act. The majority of the Tribunal concluded that s. 25.1 applied to their agreement. In doing so, it found that the Office was not an automatic party to the revocation hearing, and that it had no role in the settlement. The Tribunal dismissed the Office’s referral application as moot. The majority also found that in those cases where it has serious concerns about how a revocation application request might unfold, the appropriate procedure would be for the Office to seek party or intervenor status. The reconsideration request concerns these aspects of the decision.
THE TEST FOR RECONSIDERATION
- The Tribunal has set out the tests for reconsideration in the Women's College Hospital (No.2) (1990), 1 P.E.R. 178 at paragraph 14 and Riverdale Hospital (No.2) (1991), 2 P.E.R. 8 at paragraph 5. It is clear that the discretion to reconsider a decision will only be exercised where there are compelling and extraordinary circumstances making it appropriate to do so. In deciding whether to reconsider a decision that was intended to be final, the following factors have been found useful:
(1) Were there legal submissions or evidence which could not have been presented by the party seeking reconsideration at the time of the hearing and which, if accepted, would be practically conclusive in changing the outcome of the case?
(2) Since the decision, has there been a change in circumstances such that the decision should not stand?
(3) Is the decision wrong in law?
In this case, the Office relies on the first and third factors.
- We are not persuaded that the Office was denied the opportunity to make legal submissions. It was provided with notice of the hearing but opted not to participate. Having elected to not seek standing, the Office cannot claim that it was unable to present the legal submissions it now wishes the Tribunal to consider. The Office was entitled to receive notice of the hearing and the pre-hearing, and did in fact receive notice regarding the multiple proceedings at the Tribunal, which included its own compliance referral. The Office’s argument suggests that a party is entitled to on-going notice of the various issues as they arise in a proceeding. Under its own Rules of Practice, the Tribunal is not obligated to advise an absent party about subsequent developments in the case. Rule 11.02 provides:
Where any person properly served with a notice of hearing fails to attend at the scheduled hearing, the Tribunal may proceed and dispose of the case in that person’s absence and without further notice.
Section 7(1) of the Statutory Powers of Procedure Act, R.S.O. 1990, c. S-22, as amended provides:
Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.
In addition, we note that the legal submissions the Office wishes us to consider were, for the most part, explicitly considered and rejected by the majority of the Tribunal. We therefore do not agree that their repetition by the Office would be practically conclusive, or even likely, to change the outcome of the case. Moreover, to the extent that the documents filed in this reconsideration application demonstrate any new factual information, it is that the Hospital and the Union both state that the Office was aware of their ongoing efforts and was asked to help them reach a settlement prior to the hearing. The Office refused to do so because, according to the Employer’s submission, of “its stated position that until such time as the Order of a Review Officer which was issued on April 22, 1993 was revoked by the Tribunal, it would not assist the parties in negotiating a Pay Equity Plan”. By its refusal, the Office continued to opt not to participate.
The Office states that the majority’s interpretation of subsections 25(1.1) and 25.1(1) of the Act, and its application of the decision in Scarborough (No. 2) to the facts of this case, are errors in law. Although it puts forward an alternate approach to the interplay of subsections 25(1.1) and 25.1(1) and suggests why it disagrees with the application of the Scarborough decision, the Office does not identify any authority or reasoning which indicates the Tribunal’s interpretation constitutes an error in law. Different interpretations are obviously possible, as the existence of a thoughtful dissent demonstrates. That an alternate interpretation is possible does not render the decision wrong in law. If it were otherwise, the adjudicative finality that is the object of privative clauses such as s. 30(1) of the Act would be without meaning.
Even if there were cogent reasons to reconsider whether the plan negotiated by the Employer and the Union was a settlement within the meaning of s. 25.1(1), we would be very reluctant to do so in this instance. The majority decision noted that the Employer and the Union were seeking some assurance prior to posting that this stage of the process would not be the subject of further litigation and that they hoped to post the plan immediately. Despite this, the application for reconsideration was filed more than three months after the decision was issued. In the meanwhile, the parties conducted themselves as they had advised. Shortly after the decision was released the plan was posted and all anticipated adjustments totalling 7 million dollars retroactive to January 1, 1990 were paid. This took place prior to the filing of the reconsideration application. The parties had no communication from the Office indicating that it would be seeking a reconsideration.
For these reasons, we decline to exercise our discretion to reconsider the decision.
DECISION OF MEMBER BRUCE BUDD, MAY 31, 1996
I dissent from the majority decision and would grant the request for reconsideration.
In this case, the Pay Equity Office investigated a complaint, could not effect a settlement and issued an Order dated April 22, 1993. After considerable time, several communications from employees that no pay equity plan reflecting the Order had been completed and as a result of her own investigation, the Review Officer referred the matter to the Tribunal for enforcement of the Order. Thereafter the Employer filed its application to revoke the Order. Both applications were to be heard concurrently, with the PEO having standing as a party in the hearing as a result of its application under s. 24 for enforcement of its Order. However, the Office agreed not to seek enforcement pending the outcome of the parties’ application to have the matter adjudicated on its merits. The day before the hearing was to begin the negotiating parties reached a settlement and, without informing the Office, requested that the Tribunal accept their settlement as binding under s. 25.1. No adjudication on the merits ever occurred.
In its original decision the majority, referring to the Office, said; "when it advised the parties in writing that it would not be seeking standing, as reflected in the Pre-Hearing Memorandum, the Office was indicating that it did not see itself entitled to automatic party status..."(paragraph 31). In my view this overstated the position of the Office and put them in the position where a decision to facilitate the hearing process disentitled them to the right to be heard.
I believe that the majority decision was a denial of the PEO’s right to participate in the hearing and, as such, was an error in law meeting one of the tests for reconsideration. Therefore, I would grant this request.