Ottawa Board of Education v. Ontario Secondary School Teachers' Federation, 1997 CanLII 12088

PAY EQUITY HEARINGS TRIBUNAL

0473-93 Ottawa Board of Education, Applicant v. Ontario Secondary School Teachers' Federation - Educational Assistants, Respondent

0474-93 Ottawa Board of Education, Applicant v. Ontario Secondary School Teachers’ Federation - Plant and Support Staff Unit, Respondent

0485-94 Ontario Secondary School Teachers’ Federation - Educational Assistants, Applicant v. Ottawa Board of Education, Respondent

0487-94 Ontario Secondary School Teachers’ Federation - Plant and Support Staff Unit, Applicant v. Ottawa Board of Education, Respondent

Before: Phyllis Gordon, Chair, and Members Bruce Budd and Charles Taccone

Appearances: Carolyn Kay-Aggio for the Ottawa Board of Education; Cindy Wilkey for the Ontario Secondary School Teachers’ Federation

Cite: Ottawa Board of Education (No. 4) (29 January 1997) 0473:93; 0474-93; 0485-94; 0487-94 (P.E.H.T.)

DECISION OF THE TRIBUNAL, DATED JANUARY 29, 1997

1We met with counsel and the parties on January 23, 1997 for the purpose of clarifying certain matters, including the following question which the parties had set out in a pre-hearing memorandum:

whether the adequacy of the design of the OBE SKEW system is properly the subject of review in this hearing or whether the Tribunal’s review is limited to the application of the system.

2After a discussion with counsel, we answered this question as follows: the adequacy of the design of the SKEW system is not properly the subject of the review in this hearing, nor is the process leading to the final evaluation results. We will examine the job content of the relevant positions in order to ensure we have a comprehensive understanding of the positions. We are not concerned with the process prior to the final rating. Rather, we will be focusing on the following issues:

∙ What job content was rated?

∙ How was the job content related to the job factors of the SKEW system?

∙ What rating did the committee assign to each job factor?

∙ Is the rating given reasonable?

∙ Was there any job content that was not accounted for?

∙ If the job content was not evaluated, is that omission reasonable?

3Two disclosure issues remain unresolved. One issue, regarding payroll and pay equity adjustment information from 1989, will be considered at a later date. The other is the OSSTF’s request that the OBE provide all rating notes for relevant job classes, including the notes of individual committee members.

4The OBE states that it is ready to disclose any existing documentation which summarizes or explains the final rating decisions of the evaluation committees, although it is not certain that such documentation is still available. To the extent such background documentation clarifies the pay equity plans, it would assist our determination. The OBE objects to the disclosure of evaluation notes made by individuals on the committee; stating that such disclosure would necessarily lead to an examination of the process, which is not the subject of this hearing. However, the OBE also intends to lead oral evidence about the ratings, particularly in light of the central OSSTF allegation that certain significant aspects of the job content were not evaluated at all. It is intended that the oral evidence respond to this allegation, showing in what manner such content was rated. As this would be the limited purpose of the evidence it proposes to lead, the OBE maintains that individual member notes would not be relevant.

5In our view, if the OBE leads oral evidence to show that particular content was evaluated, and to explain where, in its rating results, it is rated, this evidence is not exempt from the ordinary rules of procedure and evidence. Therefore, the OSSTF is entitled to disclosure of the notes requested. While, in the end, the notes may or may not be helpful in reconstructing the final ratings, they are arguably relevant to this issue. Their relevance and admissibility as evidence will be decided during the course of the hearing.

6We also discussed a more stream-lined approach to the case, which counsel for the OSSTF characterized as “ratings de novo”. This is based on the appreciation that, as a panel, we will be assessing the job content ourselves. Therefore, it may be possible for counsel to focus the evidence on the job content, as well as providing us with an understanding of the evaluation tool used. Submissions could then focus on what results are reasonable. While this is one possible approach, we leave the design of the case to counsel, who will each assess what evidence she believes essential or prudent. We also wish to make clear that in assessing the job content, we will not be sitting in the place of the original evaluation committee. Rather, the purpose of our review is to establish the ranges of reasonableness against which the committees’ results can be considered in order to determine whether they did or did not comply with the statutory standards.

7We also were advised that the OSSTF intends to call an expert witness, and that the OBE intends to object to the leading of expert testimony. We advised the parties that hearing expert evidence prior to hearing the job content and ratings evidence will not be as helpful as hearing it later in the hearing. If an expert is to be called, written notice is to be given to opposing counsel and the Tribunal, indicating what aspects of the expert’s report will be the subject of her testimony. If there is an objection to such evidence, we are to be advised in writing. If necessary, in order to expedite the hearing, the objection may be argued in writing.