Pay Equity Hearings Tribunal

0572-95 The Corporation of the City of Brantford, Applicant and Julie Powell, Respondent

Before: Heather M. MacNaughton, Vice Chair and Members Geri Sheedy and Margaret Kvetan

Appearances: Robert J. Atkinson for the Applicant and Catherine Bickley for the Respondent

Cite As: City of Brantford (No.1) (June 6, 1996)

[1]. The Applicant, the Corporation of the City of Brantford (the "City) has filed an Application with the Tribunal pursuant to Section 24(6) of the Pay Equity Act, R. S. O. 1990, c.P.7 as amended (the "Act") asking that the Order of a Review Officer dated August 10, 1994 be revoked. Ms. Powell applied to Review Services about the appropriate banding of her positions and pursuant to Section 9(2) of the Act. The Review Officer ordered the City to recognise the value of the work performed by the Convention and Special Events Coordinator and by the Tourism Coordinator at Band 8 of its compensation schedule. The Officer further ordered that the Respondent, Ms. Powell, be reinstated to the position of Convention and Special Events Coordinator at a rate of pay equal to level 3 of Band 8, with compensation for lost wages and benefits. The Officer further ordered the City to pay interest on monies owed pursuant to her Order.

[2]. Ms. Powell filed a Response pursuant to the Rules of Practice of the Tribunal. In it Ms. Powell sets out the order that she seeks. Ms. Powell asks the Tribunal to evaluate the jobs of Tourism Coordinator and Convention and Special Events Coordinator at Band 9. She further asks that she be reinstated to the position of Convention and Special Events Coordinator with attendant lost wages, benefits and retroactive pay at the level appropriate for Band 9. In addition, Ms. Powell seeks compensation for job search expenses and mental anguish and make whole relief, including her costs of participating in this Application.

[3]. The City has moved for an order striking out the relief sought by Ms. Powell in her Response.

[4]. The City makes this request on 2 grounds. Firstly, to the extent the relief sought is a variation of the relief ordered by the Review Officer, it is inappropriate for Ms. Powell to seek such relief in a response. They submit that Ms. Powell should have filed her own application. Secondly, to the extent the relief requested goes beyond issues raised at Review Services, the City submits that the Tribunal has no jurisdiction to deal with it.

[5]. Counsel for Ms. Powell says that the relief requested is not new, and is but a refinement of the Review Officer's Order. She submits that much of what is sought was raised during the Review Services process.

[6]. Counsel for the City referred us to the decision in Scarborough (No. 1)(1994), 5 P.E.R.45 in which the Tribunal held that:

Proceedings before the Tribunal are commenced by an Application in which the Applicant must "include a general statement of the issue or the reason for requesting a hearing". In the Response, the Respondent is asked to respond "to the issues raised by the Applicant". A Response in not the appropriate place to raise objections to a Review Officer's order and seek independent relief...The Tribunal's Rules envisage an exchange of pleadings so that the parties can both know the case they have to meet. They provide for an opportunity to respond to each application, and to reply to each response. There are time limits imposed for each of these steps. If the Respondent here is permitted to essentially raise application issues in a response, then how may those issues be responded to, and within what time frames? These uncertainties can be avoided if any additional pleadings take the proper form.

[7]. We agree with the submission of Counsel for the City that the request by Ms. Powell that the Tribunal evaluate the jobs of Tourism Coordinator and Convention and Special Events Coordinator at Band 9, is a request for relief that was not granted by the Review Officer and raises evidentiary issues and issues of onus. These requests are not properly done by way of a response. Ms. Powell should not be in a better position as a result of the fact that the City has applied to revoke the Review Officer’s Order, without filing an application and having the attendant burden of showing that the Review Officer’s findings were in error. To the extent that the other relief sought is attendant on a finding that these jobs are appropriately evaluated at Band 9, that relief too is outside the scope of a response.

[8]. We agree with the submission of Counsel for Ms. Powell that it is open to her to seek relief that she did not seek at Review Services. The decision in Scarborough, supra, dealt with new substantive issues being raised for the first time at the Tribunal. What Ms. Powell is seeking is a Tribunal order that differs from the Review Services order in relief only. It is always open to the Tribunal on a hearing de novo to craft a remedy that differs from that crafted by the Review Officer and, hence, in an application Ms. Powell could seek relief of the nature being sought in the Response. In fact, one item of relief sought by Ms. Powell is the costs of the proceeding before the Tribunal. Relief of this type could not have been raised with the Review Officer.

[9]. We considered the submission made by Counsel for the City that Ms. Powell has known since October of 1995 that it was the intention of the City to bring this motion and that, in the result, it is too late for an application now. We do not agree. We, therefore, order that, if Ms. Powell wishes to pursue the relief she sought by way of her Response, she must file an Application with the Tribunal within 15 days of the date of this Order. The City will then have 15 days to respond, and Ms. Powell a further 5 days to reply. These time frames are limited and depart from those set out in the Tribunal's Rules of Practice, to reflect our concern that this motion could have been avoided had Ms. Powell simply filed an application in October of 1995. Any such application will be consolidated and heard together with the existing Application of the City.

[10]. We further Order that the parties attend a pre-hearing to deal with the procedural and hearing management issues that may arise as a result of a further application, if filed. The pre-hearing will occur prior to the next scheduled hearing day in this matter.

Dated at Toronto this 6th day of June, 1996:

Heather M. MacNaughton
Panel Chair

Margaret Kvetan
Employer Member

Geri Sheedy
Employee Member