La Corporation du Village de Plantagenet v. Monique Bastien, 1997 CanLII 12221

0541-95 La Corporation du Village de Plantagenet, Applicant v. Monique Bastien, Respondent

Before: Phyllis Gordon, Chair, and Members Margaret Kvetan and Bruce Budd

Appearances: Marc Simard for the Applicant; Niculae Amarica for the Respondent;

Carrie Gallant for the Pay Equity Office

Cite as: Plantagenet (May 15, 1997) 0541-95 (P.E.H.T.)

DECISION OF PHYLLIS GORDON, CHAIR, AND BRUCE BUDD MEMBER

Introduction

Monique Bastien was the Clerk-Treasurer of the Corporation of the Village of Plantagenet (the "Village"), from March 26,1990 to August 8, 1994, when she was dismissed. The Review Officer found that the Village had penalized M^me Bastien because she had exercised her rights under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended, (the "Act"), thereby contravening section 9(2). She ordered the Village to reinstate Monique Bastien to the position of Clerk-Treasurer. The Applicant Village seeks revocation of the Review Officer's Order.

The Legal Context

The purpose of the Act is to remedy the discrimination in compensation for employees working in female job classes. It explicitly protects the right of employees to be free from reprisals for pursuing their rights under the Act. Subsection 9(2) states:

(2) Intimidation prohibited. - No employer, employee or bargaining agent and no one acting on behalf of an employer, employee or bargaining agent shall intimidate, coerce or penalize, or discriminate against, a person,

(a) because the person may participate, or is participating, in a proceeding under this Act;

(b) because the person has made, or may make, a disclosure required in a proceeding under this Act;

(d) because the person has acted or may act in compliance with this Act, the regulations or an order made under this Act or has sought or may seek the enforcement of this Act, the regulations or an order made under this Act.

The Act also provides in subsection 25(7) that:

In a hearing before the Hearings Tribunal, a person who is alleged to have contravened subsection 9(2) has the burden of proving that he, she or it did not contravene the subsection.

Thus, the Village has the legal and evidentiary onus of proving that it did not contravene ss. 9(2) in its treatment of M^me Bastien.

Although counsel for the Village made very thorough argument to the contrary, we find that the test developed in Peterborough (Clow) No.3 (1996), 7 P.E.R. 33 is appropriate to our determination of whether subsection 9(2) has been violated. The onus is on the Village to establish, first, that the reasons given for the discharge are the only reasons, and, second, that these reasons are not tainted by anti-pay equity animus.

Whenever the timing of the discipline or discharge coincides with the enjoyment or seeking of a benefit, it should be scrutinized closely and false motives should not be allowed to masquerade as legitimate ones. If an employer has implemented a genuine management objective, even though it coincides with the enjoyment of a benefit, the employer will be able to discharge its onus so long as the employer's conduct is not tainted with anti-pay equity animus. (supra, para. 48)

Even though much of the evidence presented addressed M^me Bastien's job performance and skills in the position of Clerk-Treasurer, our inquiry is not intended to assess whether the allegations of poor performance justify dismissal, but whether the Village's decision to dismiss was free of anti-pay equity motivation. Were the reasons for the dismissal limited to the Village's perceptions of poor performance, or, were pay equity considerations also involved? In answering these questions we will be examining what information the Village had when it made its decision and how the decision to dismiss M^me Bastien was made.

Positions of the Parties

The Village admits that it approved the settlement of its pay equity plan at the same meeting it decided to dismiss M^me Bastien. While acknowledging that this coincidence in time makes it difficult to meet the Peterborough test, the Village contends that the reasons for M^me Bastien's dismissal were entirely legitimate. Council's general dissatisfaction with M^me Bastien's performance had existed for some time and it maintained this was confirmed in a letter by the Village's auditor setting out her deficiencies in the accounting component of her job duties. The Village states that she was eventually dismissed because her accounting skills were inadequate.
M^me Bastien's position is that her employer treated her differently after she voiced her opposition to the pay equity plan adopted at the January 11, 1994 Council meeting and made a formal complaint to the Pay Equity Commission. She contends that prior to these events her job performance was generally well regarded. After her opposition to the pay equity plan became known, her employer gave her a negative performance evaluation, placed her on probation and, ultimately, dismissed her.
Sylvio Simard, the incumbent Clerk-Treasurer at the Village of Plantagenet at the time of this proceeding, was served with notice of the hearing. He neither responded, nor attended the hearing, and no one spoke on his behalf.

Decision

We find that the Village's decision to terminate M^me Bastien's employment was not based solely on concerns about her work performance but was in part motivated by an anti-pay equity animus. Thus, the Village of Plantagenet contravened section 9(2) of the Act.

The Evidence

In this decision we review the relevant evidence chronologically in order to trace the relationship of the pay equity events to the performance management events. Although we heard from several witnesses we do not explicitly refer to the evidence of each. For the record, the Village's witnesses were Kathleen Andrews, Serge Bossé, Chantal Allard and Marc André Geoffroy. Monique Bastien's witnesses were Monique Bastien, Robert Butler, Serge Roy, Anne Lacombe, Richard Cyr and Linda Sullivan.
Various parts of the evidence and submissions were presented in French and other parts of the evidence and submissions were in English. One aspect bears comment from a linguistic point of view. The French word "comptabilité" translates into English as either "accounting" or "bookkeeping". Much of the evidence concerned financial record-keeping, sometimes dealing with bookkeeping tasks, sometimes dealing with the more complex functions of accounting. Most often the parties did not attempt to delineate whether they were referring to bookkeeping or accounting. In the English version of this decision we use the word "accounting" for both bookkeeping and accounting, as it is not our role to classify each reference. Similarly, in the French version, we use the term "comptabilité".

Background

The Village, with a population of approximately 850, is situated in the County of Prescott-Russell. At the time the events in question occurred it was an independent municipality. On January 1, 1997 it was amalgamated with the neighbouring municipalities of the Corporation of the Township of Alfred, the Corporation of the Village of Alfred, and the Corporation of the Township of North Plantagenet. Pursuant to an Order of the Minister of Municipal Affairs and Housing, all liabilities and obligations of the former municipalities are assumed by the new Township.
Village matters were dealt with by an elected part-time Council made up of a Reeve and four Councillors. Day-to-day administration of the Village was handled by a small staff which included a full-time Clerk-Treasurer, a full-time Roads Superintendent, a part-time Building Inspector, a part-time Librarian and, from early 1994, a full-time Secretary-Receptionist. Part-time secretarial support was retained from time to time on a contract basis. During the relevant time period the Village had an annual budget of approximately $1.4 million.
Council considered the Clerk-Treasurer to be the most important position. The job had four main functions: clerk, treasurer, tax-collector and secretary-receptionist. The treasurer function included managing the budget, paying expenses, maintaining the Village's books and providing financial information to Council.
In 1989 the former Clerk-Treasurer announced her resignation and a job search was commenced. While the search was in progress, the Village received an application from M^me Bastien seeking work as secretary or administrative assistant and it asked her to interview for the Clerk-Treasurer position. The interview process included testing candidates' clerical abilities but did not test their accounting skills. There were approximately 40 applicants. Of the 6 persons interviewed, M^me Bastien was the Council's unanimous choice. Her employment began March 26, 1990, beginning with a three-month probationary period.
When M^me Bastien began at the Village, its offices were very rudimentary, the only equipment being a typewriter. She undertook its reorganization, including the large task of creating property files. Following her hire, Council approved the automation of the Village's office, including its financial systems. It selected the firm MuniSoft which provided (and provides) computer systems to small municipalities in the area of municipal finance. The firm's headquarters are in Regina and the Ontario office is located in Kingston. The Plantagenet installation was the first one outside of Saskatchewan and the software had to be adapted to Ontario because of differences in tax legislation and billing systems for water and sewage. The new system was installed at the Village early in 1991 and the conversion to automated accounting went on through 1992 and 1993. During the conversion period, M^me Bastien maintained parallel manual and computerized accounting systems.
The accounting firm of Deloitte Touche, the Village's auditors for 25 years, were the auditors at the time these events took place. The financial year was the calendar year and there were normally two audits each year: a preliminary audit in the fall, and the final audit in the spring of the following year. In preparation for the audit, the Clerk-Treasurer provided figures and other information to the auditors. Normand Beaulieu was assigned to do the Village's audit from 1992 onward.

Performance Evaluations of M^me Bastien Performance prior to the Pay Equity Process

1989, 1990, 1991

During these three years, the Council, elected in 1988, conducted performance appraisals orally. Mr. Langlois, the Reeve, met with M^me Bastien, reviewed her performance and her job description, and then reported to Council. These were satisfactory reports and each year M^me Bastien received an annual increase. All the members of this Council, except for the Reeve, were reelected in November 1991, forming "the '91 Council". Marc-André Geoffroy was elected Reeve.

1992

Following the election of the '91 Council, performance appraisals were approached somewhat more rigorously. M^me Bastien took the initiative for this by developing a form which followed the outline of responsibilities set out in her job description. The form provided for ratings of "excellent", "good", or "poor". M^me Bastien completed this form in late 1992 and in late 1993 in anticipation of the contract renewal discussions which took place at the beginning of the next calendar year. Neither M. Geoffroy nor any other Council member wrote any comments on these forms, which were referred to by the parties as self-appraisals.
When she completed these appraisals in 1992 and 1993, M^me Bastien indicated that some items were not applicable. For example, the Financial Information Return (FIR) form filed annually with the Ministry of Municipal Affairs and Housing was "not applicable", because, in her experience, this form was completed by the Village's auditors. Similarly, sending of notices of tax arrears was noted as inapplicable, as she had been told early on by Council not to attempt regular mailings of such notices because it was not cost-effective. She also indicated that some tasks were carried out in conjunction with Council, including the planning for municipal funds, the placement of monies and bank loans, and the responsibility to ensure that sufficient reserves existed for capital projects.
Witnesses for the Village were questioned about the ratings on the forms. M^me Andrews, a retired school teacher who had been a member of Council for several years (but who was no longer on Council when she testified), and M. Bossé, also a Councillor and a local entrepreneur whose family had been living in the Village for several generations, (and the only member of the '91 Council on the '94 Council) had not seen the forms before testifying. For the most part, they agreed with the ratings, although they would have rated some items higher or lower. They disagreed that some of the items were "not applicable" as indicated. M^me Bastien testified that she showed the evaluations to M. Geoffroy, and would have answered any questions he had. She did not receive direction from him to vary the form, to fill it in differently, or, to evaluate herself on the items she had considered inapplicable. He never indicated that the "inapplicable" items fell within her job duties and responsibilities.
M. Geoffroy took steps in 1993 to make the evaluation process more formal. In mid-January, 1993, he met separately with M^me Bastien and the Roads Supervisor to review their 1992 performance and to prepare for the 1993 salary negotiations. M^me Bastien typed a document at his direction, entitled "Salaries 1993" which summarized these interviews. M^me Bastien recalled that it served as M. Geoffroy's notes for his report to Council. The portion of the document related to M^me Bastien reads as follows:

SALARIES 1993

On January 14 and 15, Mr. Geoffroy met with the clerk and the superintendent individually in order to proceed to an evaluation of their performance in 1992.

CLERK

Generally, Council is satisfied with the work of the Clerk; on the other hand, the Reeve makes the following recommendations for 1993:

Priorize initiatives
Improve performance in accounting
Improve personal organization in accomplishing the tasks related to:

a. service to taxpayers

b. clerk tasks

c. treasurer tasks

The Clerk recognizes that there is room to improve certain tasks and to revise the job description. The Clerk asks to participate at certain training sessions and conferences specifically related to her work.

M^me Bastien felt that there was agreement with what was set out in the document. In their testimony, M. Geoffroy, M. Bossé and M^me Andrews each treated this performance appraisal as satisfactory. M. Geoffroy made his report to Council on February, 15, 1993, at which time M^me Bastien's salary was increased from $29,000.00 to $31,000.00 per annum, although her request for a benefits package was not granted. There was no evidence that this refusal was related to her performance, and we find that it was based on other considerations.

1993

In late 1993 M^me Bastien again completed a self-evaluation of her work performance during 1993 and she testified that she met with M. Geoffroy in late November to discuss it. She testified that his only comment was that the nomenclature found in her monthly financial reports was hard to follow. M. Geoffroy did not recall a discussion with M^me Bastien about this second self-evaluation. He did, however, remember that the form served as a point of discussion, although it was not final and he had had some concern about the rating mechanism of excellent/good/poor. Given the greater clarity of M^me Bastien's testimony, and the uneven recollection demonstrated by M. Geoffroy, we believe that a meeting did take place in late 1993, but that it was not reported to Council.

Informal Commentaries

M. Geoffroy, M^me Andrews and M. Bossé testified that Council had conveyed its dissatisfaction with her performance to M^me Bastien during 1993, particularly about her accounting. They each testified that they were always asking questions of M^me Bastien and that they expressed their frustration to her that nothing appeared to be changing. They wanted up-to-date financial information for Council meetings and for their subcommittees. They believed that they had communicated to M^me Bastien that the financial reports she generated were not useful.
M^me Bastien did not view their questions in the same way. She thought they were more collegial in nature and that she and Council were working together on problems. She did not perceive the questions to be hostile or evaluative or to be as frequent as the Councillors indicated. After January 1994 she began to perceive hostility and greater frequency in the questions.
While Council members successfully conveyed to us their belief that things were not as they should be, they had almost no specific details of their complaints or of how they had been raised. For example, their criticisms were not recorded in the minutes of their meetings. The few examples they provided we find to have been unique events and very dated---such as M^me Bastien's failure in 1990 to apply for a summer grant for life guards, a single failure which was never repeated with respect to any further grant applications. Both M^me Andrews and M. Bossé testified that they had long been supporters and friends of M^me Bastien, until they began to lose faith in her abilities. Given this relationship, it is quite possible that they were not clear or direct with her about their perceptions. We conclude that any frustration they were actually feeling in 1993 was not conveyed to M^me Bastien in a specific enough manner to be considered a critique of her work or part of an on-going evaluation process.
In 1993 M^me Bastien had a very heavy workload. Supervision of the water meter installation project was very time-consuming. The conversion of the accounting and billing to a computerized system was on-going and more complex than M^me Bastien expected or the Council members understood. While they gradually began to perceive her answers as excuses, the Village's witnesses agreed that M^me Bastien worked hard, was regularly busy and that she carried out her clerk functions well.
We find that the Council members experienced frustration with the monthly financial reports M^me Bastien prepared. This was communicated to M^me Bastien during 1993, if not directly, then by the expression of frustration when the reports were discussed at meetings. We heard much evidence about these reports, including the difficulties M^me Bastien had had with the MuniSoft program. M^me Bastien was attempting to re-program or customize the software herself to meet the Village's needs. This was done over the telephone with the assistance of MuniSoft personnel and took much of her time. In response to Council's complaint, M^me Bastien continued to work on the customization of the reports in order to make them more suitable.

The Development of a Pay Equity Plan at the Village of Plantagenet

M^me Bastien and M. Geoffroy each testified about how pay equity was introduced to the Village in late 1993 and early 1994. For the most part, their versions are consistent. The Village had received correspondence about pay equity and set out to become more informed. At approximately the same time, the issue was raised at a regular monthly meeting of the Clerk-Treasurers of the eighteen municipalities of Prescott-Russell. The municipalities had jointly arranged for advice from the consulting division of Deloitte Touche, as a cost-saving measure. Clerk-Treasurers from four of the municipalities identified that a pay equity plan was needed in their municipality and meetings were held with the consultant, to both train staff and Council members, and prepare their pay equity plans.
At the first meeting on November 30, 1993, the consultant's proposed questionnaire was reviewed and fine-tuned. M^me Bastien was the only person from the Village who attended this meeting. December 3, 1993 was a training day. M. Claude Charette, a member of Council, attended the morning session intended for Council members as M. Geoffroy was unable to attend. The afternoon session was for training of staff and Jean-Claude Leduc, the Roads Superintendant and Chantal Allard, the Village's part-time Secretary, attended. M^me Bastien was at both sessions. At the December 6, 1993 Council meeting, M^me Bastien and M. Charette gave an overview of what they had learned and provided copies of written materials to Council members. Council voted to retain Deloitte Touche to develop its pay equity plan.
After the training session, the consultant from Deloitte Touche reviewed and evaluated the completed Positions Description Questionnaires. M. Geoffroy and M^me Bastien both attended the next meeting with the consultant on December 14, 1993 for the purpose of "sore-thumbing" the results and reviewing point ratings. The consultant indicates in his/her written report of January 6, 1994 that after this meeting, he/she completed the relevant analysis based on the revised point ratings and met with M^me Bastien and M. Geoffroy on December 20, 1993 to review the results.
M^me Bastien testified that M. Geoffroy first raised the issue of excluding the Building Inspector position from the plan at the December 20 meeting with the consultant. He indicated that the Village considered the position an anomaly because of the geographical location of the Village and the difficulty of filling the position. She had stated that she understood his reasoning but that the study would reflect all the positions, and so should the ratings. We note that the consultant had prepared some charts and related documents which included the Building Inspector position. M^me Bastien said that they comprised the documents which were reviewed on December 20, 1993. The Building Inspector, being the highest paid male job class, had a very significant impact on the job rates for each of the female job classes.
There was a meeting of Council on the same night. M. Geoffroy testified that he mentioned the exclusion at this time. While M^me Bastien could not confirm or deny this, she was certain that Council did not have any of the documentation before it at that time. She did not comment on the proposal then because it was her experience that it was preferable to make her comments to the Council when it had written material before it.
The consultant's report dated January 6, 1994 sets out a pay equity plan which excludes the position of Building Inspector. The report includes the following statement.

Although there were four male-dominated positions identified and evaluated, the position of Building Inspector was excluded from the male-wage line analysis because management deemed the position to be a labour market anomaly. Given the shortage of qualified and skilled Building Inspectors in the immediate geographical labour markets, an anomalous rate of pay (relative to evaluated internal job worth [value]) must be offered to attract and retain a qualified incumbent. As such, management decided to exclude the position from the development of a comparative male wage line.

It was M^me Bastien's view that the reference to "management" was to Council rather than to herself. M. Geoffroy thought otherwise. It was his belief that M^me Bastien had agreed to the exclusion at the December 20th meeting with the consultant and that is what the report indicated. M. Bossé thought "management" referred to Council, and not to M^me Bastien. As the consultant was not called as a witness, we have no evidence about what he or she meant by the word "management".

At the meeting of January 11, 1994 and prior to the report being adopted by Council, M^me Bastien raised her disagreement with the exclusion. She said that she did so then because the report was now before Council and could be referred to, and that she thought she might influence the adoption of the plan. She did not recall her exact words but knew that she expressed her view that the salaries did not reflect the true values attributed to the positions. She testified that she likely mentioned her own salary as she filled one of the female positions, and she may have indicated that it was higher on the point value scale than the Building Inspector. After a short discussion M. Geoffroy ended the debate and then called the question. The pay equity plan was adopted. It was his evidence that he was very surprised that M^me Bastien had voiced an objection and in the way she had done so. M^me Bastien recalled the tension at the meeting, as did M. Geoffroy, M^me Andrews and M. Bossé.
M^me Bastien testified that after the meeting, she had a brief discussion with M. Geoffroy and reiterated that she definitely did not agree with him about the exclusion. He told her that she could exercise her rights under the Act and she said she would like to do that. In cross-examination M. Geoffroy agreed that he had known of her complaint to the Pay Equity Office prior to February 3, 1994 but was unsure if he knew of it before the meeting he had arranged for January 17, 1994. We find that he knew before January 17 of her intention to complain but could not have known of the actual complaint then, because the complaint was only registered when the Pay Equity Office called to do a status check on whether there was a pay equity plan in place.

Management Committee Meeting of January 17, 1994

On January 17, 1994 M^me Bastien's performance was reviewed in some detail and in her absence at a meeting of the members of Council. All the Councillors except M. Bossé were present. The minutes and the Village's witnesses refer to this as a Management Committee (Comité de Gestion) meeting. We find that the format for this committee meeting was out of the ordinary. The normal practice was that management meetings were attended by the Reeve, M^me Bastien and perhaps one other Councillor. Unlike the other committees of Council, which were standing committees and reported monthly, the Management Committee met rarely and on an ad hoc basis. The minutes of February 7, 1994 report that at the Management Committee meeting the performance of M^me Bastien and of another employee, as well as two other minor and unrelated items, were considered. M^me Andrews recalled that shortly after the January 11 Council meeting when M^me Bastien voiced her objection, the Councillors met with the Reeve to understand what was going on in pay equity and to discuss M^me Bastien's dissatisfaction. We find it likely that she was referring to the meeting of February 3, 1994.

Evaluation Meeting of February 3, 1994

On February 3, 1994, M. Geoffroy asked M^me Bastien if she could attend an unscheduled meeting that evening, the purpose of which was to begin the formalization of the evaluation process. She agreed to attend. Given that this meetingand the January 17 meeting, followed so closely after the January 11 Council meeting when Bastien expressed her disagreement with the pay equity plan, we carefully scrutinize what took place, both as to process and content.

Process

All the Councillors attended the meeting of February 3. Upon her arrival, M^me Bastien was given a copy of a document called "Performance evaluation for the year 1993". The beginning of this document reads: "during a recent meeting, the members of Council proceeded to evaluate your performance". In contrast to prior years, M^me Bastien found that this year, Council as a whole, had already considered her performance. M^me Bastien's input was not invited before the document was prepared and she did not know that its preparation was being undertaken. Nor was she provided with any opportunity to consider the matters raised in advance of the meeting.
We do not agree with the Reeve's description that what occurred was a "greater formalization" of the annual evaluation process, a point he reiterated. Ordinary considerations of employee confidentiality and the Clerk-Treasurer's reporting relationship to the Reeve, which had been protected under the former process, were discarded. The need to change the evaluation process had never been discussed at a Council meeting or with M^me Bastien. She was misled as to what the meeting would be about. M. Bossé's description of what occurred at the meeting seems more accurate -- "[it was] almost an ultimatum that was presented".

Content

Several matters were raised with M^me Bastien on February 3, 1994. The following is a review of what was discussed at the meeting, the contents of the evaluation document, and the written response which M^me Bastien gave to Council on April 5, 1994. Her response recaps what her position had been at the February 3 meeting.

Accounting

The first paragraph of the evaluation states:

The accounting portion of your tasks has come up for a second consecutive year. Without placing your integrity in doubt, Council notes that a near general confusion exists in the set-up of accounts and the explanation of the amounts. When Council asks questions, your responses are generally made with difficulty and little clarity. The format and nomenclature in the monthly financial reports are inadequate, and make the reports useless.

M^me Bastien indicated that she had frequently pointed out during the year that the problems with the reports arose primarily from programming difficulties. She expected to complete the task as soon as possible in 1994. With respect to the confusion about the set-up of the accounts and the explanation of the amounts, she had already advised Council in 1993 that she would be consulting with the auditors about the accounts which had similar titles, as the similarity caused additional confusion. She proposed that the General Ledger be brought to meetings.

Arrogance

The second paragraph states:

The arrogance you show at times when addressing Council is not acceptable. The last incident, concerning your salary, was out of place and not justified.

The "last incident" refers to M^me Bastien's participation at the January 11 Council discussion about the pay equity plan. It was the only example of "arrogant" conduct provided in either the documentary evidence or the oral testimony. At the evaluation meeting of February 3, Council told M^me Bastien that her comments about pay equity, particularly any reference to her own salary, were "out of context". She responded that her salary was part of any discussion about salaries in the context of the pay equity study and that stating her views had been appropriate.

In his evidence about why Council found M^me Bastien "arrogant" at the January 11 meeting, M. Geoffroy stated that he believed M^me Bastien had known her performance was not well regarded and that Council was about to readjust her salary. He thought she was using pay equity as a way of receiving an increase that she would not otherwise be receiving. We find this view speculative and not demonstrated by the evidence. The only specific event which had the potential to have led to such an understanding was the disputed meeting between M^me Bastien and the Reeve in November of 1993 which, he said, did not take place. There was certainly no evidence indicating that Council had been considering other options to "readjust" the position in January 1994, or, if it was, that M^me Bastien knew about them.
M. Geoffroy explained that Council had not wanted to deal with her performance gaps during the pay equity process. He had interpreted her participation at the January 11 Council meeting as an effort to merge things and thought her reference to salaries was a discussion of her own salary increase, and therefore a "personalizing" of the issue. When questioned why there was no mention of the "personalization" in the evaluation document, he responded, "except for arrogance". We do not find it credible to maintain that the word "arrogance" in the appraisal meant something other than its normal meaning of a strong tone of disrespect or a similar attitudinal posture. However, the use of the word "arrogance" sheds light on Council's mind set. We infer that Council found the fact of her participation in a pay equity salary discussion, as well as the content of her comments, to be offensive.
M. Bossé couldn't remember what "arrogance" referred to but did remember that she had made a response in an arrogant tone. He then immediately referred to M^me Bastien's salary concerns.

She never accepted a salary less than the norm. We saw it as an investment, to increase a salary, but when we began to realize the lack of results, we were more difficult about money. She had always had increases, and was devoted to her job, but she didn't have the competence required for the job.

We find this to be a much more forthright description of what was really occurring. In our view, Council was concerned that pay equity might require that it pay higher wages to M^me Bastien than it believed she deserved.

Errors

The third paragraph of the evaluation reads:

The errors which you make, whether by inattention, negligence, or a lack of information, are harmful to the municipality. We admit that, given the extent of your duties, some errors can happen. However, certain errors, such as the "Auclair" case are not acceptable.

Each of the Council witnesses readily volunteered that Council was not concerned with M^me Bastien's performance in her Clerk functions. Nevertheless, at the February 3 evaluation meeting, as well as before the Tribunal, they spent much time discussing her performance in this area. In our view, the tone of this paragraph, with its suggestion of inattention or negligence, is inconsistent with the generally high regard Council had for M^me Bastien as Clerk. Certainly, there was no evidence that Council considered either of the two additional examples provided to her at the meeting--her failure to contact the current supplier of oil when seeking bids from suppliers, or her failure to mention a salary advance--to have had serious consequences for the Village.

The Auclair case

There are two parts to the "Auclair" case. The first is that the Auclairs' newly constructed home had not been assessed for water and sewage in a timely fashion. The Village's regular reporting practice had not been followed by the occasional replacement inspector when the property inspection was done. M^me Bastien did not notice promptly that the property had not been placed on the rolls by the regional tax office in Cornwall.
The second aspect was the Auclairs' personal attendance at the Council meeting of January 11, 1994 to request a postponement of their tax obligations. This appeared to be the more serious aspect of the incident, in Council's view. M. Bossé and M^me Andrews both expressed the embarrassment they had felt, for Council and for the Auclairs, which arose from a public discussion of the taxpayers' financial situation.
M^me Bastien and M. Geoffroy agreed that when M^me Bastien discovered the assessment problem, she consulted with M. Geoffroy who instructed her to send out a bill for the whole amount owing in that calendar year. The Auclairs then called M^me Bastien to say that as it was close to Christmas, they were unable to pay the full amount right away. She testified that she had spoken to M. Geoffroy who told her that he had no power to extend the payment on his own and that the Auclairs would need to consult Council. M^me Bastien understood this to mean that the Auclairs could either send a letter to Council or attend a meeting and she let them know of M. Geoffroy's response. We find that this was a reasonable interpretation of his answer.
In our view, calling this error "negligence" is heavy-handed, particularly given the rarity of "Clerk" errors. Moreover, the responsibility for any resulting embarrassment rests with the Reeve more so than it does with M^me Bastien. However, there is no evidence that he let the members of Council know of his discussions in this matter. Certainly neither M^me Andrews nor M. Bossé had known of the Reeve's role.

The Leduc Case

M. Bossé, M^me Andrews, M. Geoffroy and M^me Bastien each testified about the Leduc matter. The following is our understanding of the relevant events which existed as of February 3, 1994. We do not make any reference to subsequent events.
During the summer of 1991, M^me Leduc came to the Village's offices to pay her water bill and Chantal Gratton, a student and part-time employee, attended to the payment. M^me Leduc made a payment partly by cheque and partly in cash and apparently had a receipt indicating that she had paid the amount in full. In July of 1993 she went to the Village to discuss her bill with M^me Bastien because it showed arrears for unpaid water charges. M^me Bastien showed her the relevant bank deposit book which indicated that the amount had not been paid in full. M^me Bastien believed that M^me Leduc was satisfied with her explanation and reported this incident to M. Geoffroy.
M. Bossé testified that M^me Leduc could not have been satisfied with me M^me Bastien's explanation because she had complained to him about receiving a run-around from M^me Bastien. However, although he knew about this in 1993, he did not raise his concern with M^me Bastien until February 3, 1994. M^me Bastien was astounded that the matter was being raised for the first time at such a late date.
Whatever may have happened in 1991, M^me Bastien believed that she had adequately dealt with this taxpayer's problem and had briefed the Reeve. While M. Bossé thought M^me Bastien was at fault for not bringing the issue to the attention of Council, neither M. Geoffroy nor M^me Bastien apparently thought at the time that it was necessary to do so. (Curiously, in the Auclair matter M. Bossé thought her at fault for letting the matter get to Council.) We find that the Leduc matter was dredged up to support the Village's negative performance evaluation. Its characterization as harmful is exaggerated.

Follow-up/Organization

In the February 3 evaluation, Council also referred to M^me Bastien's inadequate follow-up after meetings which it attributed to a lack of organization and it questioned the priority she gave her tasks. Although it acknowledged that her workload was great, Council expected greater results following the computerization of the office and the hiring of occasional part-time staff. M^me Bastien's view was that at times her workload was so heavy she could not always meet deadlines. She hoped that with the permanent secretarial position just being filled, she would be able to meet all clearly set priorities.
There were few examples in evidence of problems with organizational matters or meeting deadlines apart from financial matters, and none which related to the time period covered in the performance evaluation. In fact, the minutes and extensive documentation for meetings were regularly produced promptly and efficiently. With the one exception noted in paragraph 26, grant applications were well done and reports filed with governmental agencies on time. Again, we find these comments to be trumped up and inconsistent with the general and often repeated praise of her performance of the clerking function.
To summarize, we find that Council closed off M^me Bastien's effort to discuss pay equity at the January 11 Council meeting, finding it inappropriate and arrogant. Council met shortly thereafter without M^me Bastien to discuss her performance and her pay equity dissatisfaction, which was a significant change in process. It met with her on February 3 at a rushed and irregular meeting and confronted her with allegations of poor performance. Many of the comments presented did not arise from legitimate concerns and did not reflect a genuine or fair-minded employee evaluation. We find that this "evaluation" process was tainted by anti-pay equity animus.

The Beaulieu Letter

The Village relies on a letter of March 13, 1994 from Normand Beaulieu (the "Beaulieu letter") to show that its conduct regarding M^me Bastien was legitimate, and based on performance questions alone. Normand Beaulieu was the auditor assigned to the Village by Deloitte Touche. In his submission, counsel for the Village states that M^me Bastien's dismissal and the events leading to it flowed from this letter which provided the external and objective confirmation of Council's concerns. Given the importance placed on this letter, we closely examine its contents, and how Council dealt with it.
On March 3, 1994, just prior to the Beaulieu letter, Deloitte Touche submitted its annual Financial Statement and Auditors' Report of the Village for 1993, along with its standard covering letter. The covering letter did not vary in form or content from such letters sent in the past and it made no mention of accounting deficiencies. Then, on March 13, 1994, Normand Beaulieu returned to the Village and met with M. Geoffroy first, and then with M^me Bastien and M. Geoffroy together, to discuss the additional letter he had prepared.
Normand Beaulieu testified that he decided to write the additional letter after doing the annual audit because he felt it best that Council know that there were significant accounting problems. While M. Geoffroy and Normand Beaulieu denied that the letter was requested, we find it very coincidental that he decided to write it when he did. The more logical explanation is, as M. Bossé speculated in his evidence, that M. Geoffroy asked M. Beaulieu for a letter to confirm what Council was thinking. He noted that he had never seen such a document before and that Deloitte Touche had been the Village's auditors for years. M^me Andrews was under the impression that M. Geoffroy had made such a request.
The Beaulieu letter begins with a statement that, during the audit, special attention had been paid to the accounting systems and internal control. Yet, when M. Lalonde, a partner with Deloitte Touche, and M. Beaulieu reported to Council at the meeting of March 21, 1994, Council did not yet have the Beaulieu letter. Nor is there any indication that the auditors addressed either the accounting or internal control issues referenced in the letter when they gave their oral report on March 21. As they did not have the letter, Council members were deprived of a significant opportunity to discuss these concerns. No explanation was given for this omission, even though they knew that M^me Bastien's performance would be discussed at the next meeting on April 5th.
The letter itemizes problems with the maintenance of the Village's books. By everyone's admission, the Councillors were not experienced or very knowledgeable in matters of accounting. They took the letter to be a condemnation of the accounting at the Village for which they thought M^me Bastien was wholly responsible, rather than a list of recommendations designed to improve the efficiency of the Village's accounting. The letter was treated as an evaluation of M^me Bastien, rather than a comment on accounting.
When she received the letter M^me Bastien began to feel under attack and so she prepared an item by item written response to both it and the performance evaluation of February 3, 1994, which she gave to Council on April 5, 1994. However, Council by its own admission paid very little attention, if any, to her two written responses. We find that with respect to the Beaulieu letter, Council did not take the time to understand what the issues really were--either from the author of the letter or from M^me Bastien.
As indicated, we heard much evidence about the accounting shortcomings. In fact, we heard much more from both M. Beaulieu and M^me Bastien than was before Council on April 5. What is relevant, however, is what was before Council. The following is a summary of the items raised in the Beaulieu letter and in the response of M^me Bastien, which were before Council on April 5, 1994.
There are some matters raised in the letter which reflect a lack of appreciation of the subtleties of accounting. For example, M^me Bastien had not set up petty cash appropriately in the computerized accounts payable. Her comment was that had this been pointed out during the interim audit, she would have done so. She indicated that the adjustment of several accounts payable had never been raised with her and stated that when she was not certain about distributions she consulted with the auditors and that, if they were finding errors in her work, they ought to have let her know.
Other items were more complex. Normand Beaulieu referred to adjusting long-term debt according to confirmation. M^me Bastien responded that it was not clear if the reference was to the water and sewage debt with the Ministry, and that she would check the confirmation from the Ministry and the Village's operating budget with respect to this. There was insufficient evidence on this matter from either M. Beaulieu or M^me Bastien upon which we could have made a finding. Given the discussion they had, we do not see how Council could discern what this what about either.
Similarly, M. Beaulieu indicated that the auditors had adjusted the insurance payments in advance. M^me Bastien indicated that she had always done the insurance distribution according to a percentage established by the auditors and had never before been told that she was to make an adjustment. In the absence of a more detailed explanation for the divergence of these two views, we do not see how Council evaluated this item.
The letter points out that M^me Bastien had not completed the bank reconciliations in 1993 and because of this, other delays occurred. Her response indicated that she had told M. Geoffroy about this problem when it occurred in March of 1993. Following his direction, she then went on with other work but never got back to the reconciliations.
On some matters, such as the property tax sale item, M^me Bastien stated in her reply that she could not make the entry until the transfer had been confirmed by the Registry Office. The latter had not yet occurred when the auditor reviewed the books. This divergence of view was not explored by Council.
Many items were matters which in M^me Bastien's view had regularly been done by the auditors at year end and not by herself or her predecessor. These included: the adjustments indicating how capital expenses were funded, whether through grants, reserves, or taxes; the separation of residential, commercial and business taxes in the budget in order to be consistent with the annual financial statements; the preparation of a list of accounts receivable at year-end; the adjustment of the reserve according to the budget; preparation of the closing entries; and, preparation of the Financial Information Returns (FIR's).
A bank loan for $150,000 had been approved by Council for current expenses at the beginning of 1993. The bank had deposited the total amount of the loan to the current account, even though the account was in a positive balance. M^me Bastien indicated that ever since she began to work at the Village, the Village had had a line of credit. In March of 1993 the new Bank Manager advised her that the account was overdrawn, as the former Manager had done. She told him that considerable deposits would be made in March, given the tax and water and sewage billings. It was at this time that the bank advanced the entire loan to the Village's account. She thought that the bank would pay down the loan when the deposits were made as had been done in the past. The Manager had confirmed to her that things would continue to operate as before.

Council Meeting, April 5, 1994

It is evident from this summary of the two documents before Council, that Normand Beaulieu and M^me Bastien had two quite different views about their respective responsibilities as Auditor or Treasurer. However, when Council considered the Beaulieu letter on April 5, 1994, it gave very little or no consideration to M^me Bastien's written comments. The Councillors' views were already fixed. M. Geoffroy stated that Council had no confidence in M^me Bastien's promises and gave very little credibility to her response. He stated further that the letter was the external evidence they needed to justify their action. M^me Andrews indicated that it was just a matter of time. M. Bossé was clear that almost a miracle would be needed to change their minds. He believed that the writing was on the wall because they had lost all faith in M^me Bastien by then.
Council did not attempt even a superficial review of the different understandings held by M. Beaulieu and M^me Bastien. Nor did it evaluate how significant the items raised by M. Beaulieu were. No weight was given to the fact that Beaulieu's letter reflected a different approach from that of the earlier auditor from Deloitte Touche.
On the basis of this analysis of the evidence we find that Council did not consider the contents of the Beaulieu letter in any detail, or M^me Bastien's response. It is, therefore, not possible to accept that the letter was a catalyst to a new understanding about M^me Bastien which moved Council to act as it did. Rather, the letter served as an external and post facto justification for a course of action which Council had already determined.
Most of the discussion on April 5, 1994 was not about the letter, but about the possible options Council was considering with respect to M^me Bastien's future. Three options were referred to:

a) splitting the position of Clerk-Treasurer into two positions, with

M^me Bastien as Clerk;

b) placing M^me Bastien on probation; or,

c) immediately dismissing her.

Council decided to place M^me Bastien on probation. M. Claude Charette appeared to M^me Bastien to be the spokesperson for Council but he did not indicate why the probation option was selected. The minutes state:

Council discussed the performance of the Clerk for the year 1993. The Clerk gave copies of her comments to the members of Council. It was decided that the Clerk will be on probation for a period of three months.

Thus, not only was the Beaulieu letter not the catalyst, it was not specifically mentioned in the minutes recording the probation decision. Rather, it was M^me Bastien's alleged performance deficiencies for 1993 which were used to justify the discipline.

M^me Bastien stated that she did not understand the full implications of the probation at the time. It was her understanding that at the end of the period of three months Council would decide whether to split the position or continue with the status quo and identify which areas would need to be improved. The minutes of June 20, 1994 reflect M^me Bastien's understanding:

The Reeve will consult Deloitte Touche in order to set a date for an interim audit. Council will proceed, following that, to a re-evaluation of the accounting tasks of the Clerk-Treasurer.(our emphasis)

The words we have highlighted indicate that after the probation period, Council would be focusing on the nature of the position, rather than her performance in it.

Council Meeting, April 18, 1994

Just prior to the beginning of the Council meeting of April 18, 1994, M^me Bastien and M. Geoffroy had a discussion about the split position option. She testified that she told him that she had considered this option and thought that maybe it would be a good approach. He pointed out that it would mean a $5,000-$7,000 drop in salary and that she would be required to train the person in the Treasurer position. He added that he didn't think it a good idea for her to raise this at Council. She responded that she wouldn't discuss the splitting of the position option at the Council meeting if it meant a decrease in pay and that she would be expected to train someone in an area where she was considered to be deficient. At the April 18, 1994 meeting, Council formally adopted a resolution which renewed the contract of the Clerk-Treasurer for a period of probation, up to the end of July 1994. The members of Council were not advised that M^me Bastien had expressed an interest in the split position suggestion.
Council did not set out its expectations of what M^me Bastien needed to achieve during the probation period. While it saw the accounting deficiencies identified by Normand Beaulieu as key, it did not ask him to discuss any plan for improvement with M^me Bastien. She did not know if any of her explanations were accepted, as no one ever responded to her submissions.
It was on August 4, 1994, only four days before she was discharged, that M^me Bastien received an undated letter written by M. Geoffroy setting out Council's expectations for the probationary period. In it, Council stated that "during the period of probation, until July 31, 1994, they will evaluate her performance and that they wished to see a clear improvement". There was no evidence that Council actually did evaluate her performance during that time. She received no feedback or monitoring during the probation period.

Pay Equity Complaint Process and Settlement

Ms Linda Sullivan, the Review Officer, began her investigation of M^me Bastien's complaint on April 29, 1994. On July 18, 1994 she met with both M. Geoffroy and M^me Bastien and a settlement was reached. For the reasons set out at the conclusion of this decision, we permitted M^me Bastien to call Ms Sullivan to testify about specified portions of her Order.
When Ms Sullivan, M^me Bastien and M. Geoffroy met, Ms Sullivan's position was that the exclusion of the Building Inspector from the Village's pay equity plan was not justified. M. Geoffroy was of the view that Council would not accept the Building Inspector rate in its plan. M^me Bastien wanted a salary which reflected the value of the position, in the area of $37,500. In the end, M^me Bastien offered to set her salary at $35,000 and M. Geoffroy agreed to take that figure to Council for consideration.
M. Geoffroy and M^me Bastien left the meeting with different views. He thought that he had got the best deal for Council, and she believed that she had negotiated the salary for a job to which she was returning. M^me Bastien testified that if she had any suspicion that she was going to be fired, she would have insisted on the $37,500 rather than the $35,000 to which she had agreed. She felt that they "had finally cleared the air, would get back on track and take it from there". This makes particular sense in light of a statement Ms Sullivan testified that M. Geoffroy made to her, namely, that if M^me Bastien were to insist on the higher rate, she would not have a job.
M. Geoffroy's view is that as pay equity is concerned with positions, and not the people in them, he was under no obligation to make things clearer during the negotiations. The distinction he makes is not applicable in this instance where he was negotiating a specific dollar amount with someone he fully expected would soon be dismissed. He provided only minimal information and took no steps to clarify potential misunderstandings. He knowingly withheld information relevant to the negotiations.
Ms Sullivan testified that M. Geoffroy called her on August 5th, 1994. Her evidence was:

He told me Council had accepted the settlement at $35,000 retroactive to 1993. It agreed to extend the range of the applicant's job to $39,000 and he said, I remember distinctly, that she would have that to look forward to.

She understood "that" to be a reference to the $39,000. M. Geoffroy confirmed that he said Council would approve the pay equity settlement. He agreed that he might have said something about M^me Bastien being happy she had won, but denied saying that M^me Bastien would have something to look forward to. His reference to "good news" was that Council would be adopting the deal. We find he was deliberately ambiguous, if not disingenuous, once again.

Interim Audit and Dismissal

When Normand Beaulieu returned in early August to review the Village's books up to June 30, 1994 he understood that he was performing a special audit to see if the books were balanced. He prepared an undated and brief report entitled "Anomalie trouvée au 30/06/94". While the covering letter to M. Geoffroy indicates that "Monique is aware of everything included in this list", it was not copied to her. It was sent to M. Geoffroy by fax on August 3 at a fax number other than the one on Village letterhead. It was not reviewed with M. Geoffroy or Council. M. Geoffroy did not discuss it with M^me Bastien.
Normand Beaulieu testified that when he did the interim audit he was not aware that M^me Bastien was on probation or that she had filed a pay equity complaint. He candidly admitted that, when he did this audit, he did not evaluate whether there had been an improvement in M^me Bastien's work. Nor would he would have offered an opinion to Council in this respect. On the other hand, M. Bossé had assumed that M. Geoffroy had told M. Beaulieu about the probation. This likely had an impact on M. Bossé's understanding of the interim audit document.
After receiving the interim audit, M. Geoffroy called a dinner meeting of Council members to be held just before the formal Council meeting of August 8, 1994 at a restaurant in a neighbouring village in order to ensure privacy. There was no record made of the discussion even though this was a meeting of the entire Council and was the occasion when Council was told of the interim audit report. While the Council treated the list from Normand Beaulieu as an indictment of M^me Bastien's performance, they were apparently unaware that he did not consider his audit to be an evaluation of her performance. We find that Council did not actually consider whether M^me Bastien's performance had improved to any degree.
The interim audit document, on its own, does not lead to an obvious conclusion about M^me Bastien's overall accounting performance. It is a list which indicates that twelve matters were either still incomplete or inaccurate as of June 30, 1994. Some appear to us to be complex adjustments properly done by the auditors. Others indicate accounting omissions or errors. Fewer items were identified over the six months than in earlier similar periods.
The interim audit indicates that M^me Bastien was not successful in her efforts to rectify the "bank loan problem". However, we note in this regard that she had asked for the assistance of Council in resolving the loan problem but Council did not do so. This leaves us with the impression that Council did not perceive the problem to be as serious as was suggested at the hearing.
On the other hand, the interim audit states that the bank reconciliations were now up to date. In addition, M^me Bastien testified that she had continued to work on monthly financial reports requested by Council and that, by the time she was dismissed the account titles in the monthly reports parallelled the titles found in the annual financial statements. These are significant improvements in two aspects of M^me Bastien's performance of importance to Council, but which it did not consider.
M^me Andrews, M. Bossé and M. Geoffroy testified that if the accounting was still as poor as the interim audit indicated, they wondered what else was being left unattended. They, therefore, felt compelled to dismiss M^me Bastien. We conclude, however, that Council did not have the information before it which supports this view. It simply effected the plan it had formulated several months earlier.
After the dinner meeting, the Council members returned to the Village for the regular meeting. Two critical motions were adopted at the Council meeting of August 8, 1994: Council ratified the pay equity settlement reached on July 18, 1994 and it dismissed M^me Bastien from her position.
M. Geoffroy testified that during his report on the pay equity settlement, he deliberately asked M^me Bastien to confirm that she accepted the settlement, which she did prior to the vote. The pay equity settlement resolution set out the new hourly rates for the female position, that they were retroactive to January 1, 1993, and provided for a salary scale for the Clerk-Treasurer position of $27,000.00 to $39,000.00. As M^me Bastien had just confirmed that she accepted the settlement of $35,000.00, we infer that the Council members understood that M^me Bastien had implicitly indicated her belief that she still would have a job. Nevertheless, the resolution was adopted unanimously.
At the end of the meeting and in an open session, M. Geoffroy announced to M^me Bastien that based on her incompetence and performance, she was being dismissed. The other Council members did not comment, except for M. Chamberlain who referred to the report from the auditors. M. Geoffroy interrupted him to say that there was no need to go into it. M^me Bastien make no comment when invited to do so. She testified that she was very surprised, especially as Council had just approved the settlement. She said that it felt like a "handshake followed by a slap in the face, or, like a stab in the back". The motion to terminate her employment was unanimous.
No additional explanation for her dismissal was provided to M^me Bastien at the meeting. Had M. Chamberlain not mentioned the auditor's report, M^me Bastien testified she would not have known of its existence. She wrote to M. Geoffroy on August 9 requesting a copy of the report. In his letter of response M. Geoffroy states:

Council is not satisfied with your performance, above all with respect to financial management and the way you approached other tasks. We find ourselves obligated to proceed in this way.

Although M. Geoffroy was the main player, the rest of Council were well aware of the ultimate goal of the process embarked upon: to dismiss M^me Bastien. We find that this goal was formulated sometime after M^me Bastien made her objection to the Village's pay equity plan. The Village's actions do not demonstrate a genuine management objective. Its stance may have been simply a manifestation of an on-going low wage policy that had existed at the Village. Alternatively, it may have arisen out of a belief that M^me Bastien was not performing well enough to deserve such a substantial pay increase. Whatever Council's rationale was for its conduct, our task is to apply the Act, which provides that conduct which penalizes an employee for pay equity activity is unlawful.

Remedy

Impact of the Municipal Amalgamation

The Corporation of the Village of Plantagenet ceased to function as a separate municipality as of December 31, 1996. After the hearing had concluded but prior to the release of this decision, the Village amalgamated with three other municipalities to form the Corporation of the Township of Alfred and Plantagenet (Canton d'Alfred et Plantagenet). The Clerk-Treasurer position of the Village of Plantagenet no longer exists.
However, Article 13 of an Order of the Minister of Municipal Affairs and Housing amalgamating the four municipalities, and made pursuant to section 25.2(6)(b) of the Municipal Act R.S.O. 1990, c. M.45 and dated December 27, 1996, provides:

Transitional Provisions

(1) Assets and Liabilities - All assets, liabilities, rights and obligations of the former municipalities and their local boards shall become the assets, liabilities, rights and obligations of the new Township and its local boards.

(3) Employees - The employees of the former municipalities and local boards shall become the employees of the new Township and its local boards.

Counsel for M^me Bastien, M^e Amarica, forwarded to the Tribunal information and submissions about the municipal restructuring. These were also sent to counsel to the Village of Plantagenet, the Corporation of the Township of Alfred and Plantagenet and its solicitors, and Sylvio Simard, the incumbent in M^me Bastien's position at the time of the amalgamation. In response to Tribunal inquiries, counsel for the Village, M^e Simard, advised that he did not intend to make submissions in reply although he reserved the right to do so at a future date. None of the other individuals or entities served by M^e Amarica made submissions. We conclude that there is no dispute with M^e Amarica's submission regarding the impact of the amalgamation for the purposes of remedy in this matter. In our view and in accordance with Article 13 of the Minister's Order, the Corporation of the Township of Alfred and Plantagenet is the successor in law to the Village of Plantagenet and required to comply with the orders we set out below.

Reinstatement

We have determined that the Village contravened ss. 9(2) when it dismissed M^me Bastien. We next consider the appropriate remedy, and our authority to order the Village to reinstate M^me Bastien. Subsection 25 (2) of the Act provides:

25(2) The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,

(b) where it finds that an employer has contravened subsection 9 (2) by dismissing, suspending or otherwise penalizing an employee, may order the employer to reinstate the employee, restore the employee's compensation to the same level as before the contravention and pay the employee the amount of all compensation lost because of the contravention;

The Tribunal has held that where section 9(2) has been contravened reinstatement should be the remedy of choice, Peterborough (Clow)(No.3)(supra). In that decision the Tribunal went on to state that reinstatement should not be ordered where the employer persuades the Tribunal that the workplace environment is such that reinstatement is not practicable. We adopt this test for our determination.
Counsel to the Village submitted that, as the members of Council had lost faith in M^me Bastien's accounting capabilities, and that, as she was the senior employee in a position of trust, the Village should not be required to reinstate M^me Bastien. As there is no question about M^me Bastien's integrity with respect to the Village's books, we find that any argument about trust refers to competence rather than to issues of honesty.
We find it relevant that Normand Beaulieu did not form a view of M^me Bastien's competence when he did the interim audit in August of 1994. Had he done so, and had it been negative, the Councillors' stated loss of trust in her competence would be more persuasive.
Although we agree that M^me Bastien's accounting skills need further improvement, we are unable to say that they are so deficient that she would be unable to perform the Treasurer function with adequate support from the auditors and with further training. Before she was dismissed M^me Bastien had started the process of upgrading her skills and was set to take the accredited Municipal Finance Program in the fall of 1994.
Although the frustration Council experienced with the monthly financial reports was genuine at the time, this problem had been largely remedied when M^me Bastien was dismissed. In any event, this was more a problem of inadequate software, and any outstanding problems with the reports could have been remedied with the assistance of an appropriate consultant. Similarly, M^me Bastien had shown prior to her dismissal that she could keep the monthly bank reconciliations up to date. Normand Beaulieu testified that M^me Bastien did much of the officially required financial reporting well and that the financial aspects of the grant applications she prepared were done well. Everyone was certain of her integrity. We find that while there are some gaps in her proficiency at managing municipal funds, these can be remedied with additional training and closer assistance from the Village's auditors for a period of time.
The Councillors' stated concerns may have been greater than ours because they had not had the benefit of the detailed evidence and submissions respecting the Village's financial affairs. For example, M. Bossé felt that M^me Bastien had been responsible for the large deficit reported for 1994. The evidence we heard leads us to believe that there were other reasons for the reported deficit and that it was unlikely to have arisen as the Councillors believed.
Moreover, the actions adopted by Council after it dismissed M^me Bastien do not support its claim that it considered superior financial administration to be of the utmost importance. After M^me Bastien's departure, and as a short-term measure, Council appointed Chantal Allard, the Secretary, to the position of Acting Clerk-Treasurer on an urgent interim basis. However, when it later decided to divide the position into two positions of Clerk and Treasurer, Council named Chantal Allard to the permanent Treasurer position, even though she had almost no accounting experience or training. M^me Bastien's experience and competence in bookkeeping, accounting and municipal finances was much greater than that of Chantal Allard. In these circumstances, we do not find the Village's professed concern about the competence level required for these functions credible. We are not prepared to deny the remedy of reinstatement to M^me Bastien on the basis of alleged accounting incompetence, when the Village itself chose to replace her with a less competent and experienced person.
Based on the above, we find that reinstatement is an appropriate remedy in the circumstances of this case. We order the Village of Plantagenet to reinstate M^me Bastien to a position which is a reasonable alternative to her former position as Clerk-Treasurer of the Village, at a salary which is no less than would have been available to her under the terms of the pay equity settlement adopted by the Village of Plantagenet on August 8, 1994.
In situations where the original position no longer exists, it is appropriate to order reinstatement to an alternative position provided that the position is reasonably similar and there will be no loss of wages as a result. Section 25(2)(b) authorizes the Tribunal "to reinstate the employee" but does not specify that the reinstatement must be to the same position or a similar position. As this is a remedial provision in the context of a statute which has the stated goal of redressing systemic discrimination in compensation, a liberal construction is warranted. To do otherwise would eliminate the remedy where the former position ceases to exist. Such an interpretation would create an avenue for thwarting the statute.

Compensation for Lost Wages

We also find that M^me Bastien is entitled to compensation for lost wages calculated from the date her salary at the Village of Plantagenet ceased up to December 31, 1996. She is also entitled to wages she would have earned in her new position at the Township of Alfred and Plantagenet from January 1, 1997 to the date upon which she resumes her duties. M^me Bastien was under a duty to mitigate, and made reasonable efforts to do so. Thus, her entitlement to lost wages is reduced by the amount she earned while mitigating her loss. Counsel are to calculate the amount owing to M^me Bastien, taking into consideration any amounts she has received from the Employment Insurance Commission. The Tribunal is to be advised within four weeks of the date of this Order if there are any difficulties in reaching agreement on the amount.

Interest

We also find that M^me Bastien is entitled to pre-judgment interest on the amounts owing to her from the date her salary at the Village ceased to the date of this decision. The formula for pre-judgment interest applied by the Tribunal in Peterborough, supra is to be used. Thus, once wage loss, less mitigation, is established, the amount owing is to be divided in half and the annual interest rate applied to it. We find that the appropriate pre-judgment interest rate is the rate set out in the Courts of Justice Act R.S.O. 1990 c. C. 43 for the month of August 1994.
In addition, we order that the Village pay post-judgment interest in accordance with the Courts of Justice Act, supra, from the date of this decision up to and including the date on which the lost wages are paid in full.
The Tribunal will remain seized with respect to the Orders we have made in paragraphs 109, 111, 112 and 113 herein, and the matters considered in paragraphs 98, 99 and 100 for a period of six months from the date of this decision.
Counsel for the Village indicated that his client was seeking reimbursement of the cost of photocopying the documents it provided to M^me Bastien for this hearing. In the circumstances of this case, we are not prepared to make this order.

As noted in paragraph 81 above, we permitted Linda Sullivan, the Review Officer, to be called as a witness. Counsel to the Pay Equity Office attended on the motion at which we considered M^me Bastien's request to call her. Section 31 of the Act provides:

Except with the consent of the Hearings Tribunal, no member of the Hearings Tribunal, employee of the Commission or person whose services have been contracted for by the Commission shall be required to testify in any civil proceeding, in any proceeding before the Hearings Tribunal or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act. R.S.O. 1990, c.—P.7, s.—31.

While we permitted M^me Bastien to call Ms Sullivan to testify, we limited the scope of her evidence to three specific paragraphs of her Order, excluded any conclusions she had made, and directed that Ms Sullivan was entitled to have her own counsel. These are our reasons for doing so.

Ms Sullivan dealt with M^me Bastien's two pay equity complaints. The first was the complaint about the exclusion of the Building Inspector and the second was that the Village had contravened s. 9(2). As we have seen, the first complaint was settled and the second led to the Order which is the subject of this Application. In her Order Ms Sullivan set out and relied upon some of the conversations she had had during the investigation and settlement of the first complaint.
As Pay Equity Hearings Tribunal hearings are de novo, the Tribunal makes findings of fact based on the evidence presented at the hearing. Before the facts recited in an order of a Review Officer are considered, they must be admitted as evidence.
We are required to consider all the evidence relevant to the issues before us, unless excluded on the basis of an evidentiary rule. We had no doubt that aspects of the narrative in the Review Officer's Order were relevant to our inquiry, and that the Review Officer was the only person who could testify about them.
Counsel to the Office and the Village relied on past Tribunal jurisprudence, particularly New Liskeard Board of Police Commissioners (No.1) (1990), 2 P.E.R. 39, and Cybermedix (1989), 1 P.E.R 40 where the Tribunal refused to hear evidence of a Review Officer. In our view, this case differs from the circumstances in those decisions. Unlike the earlier cases, the evidence here was not elicited for the purpose of challenging or exposing the Review Services process. Rather, the object was to ensure that all the relevant facts were before us for our consideration, including those set out in the Order.
Counsel to the Pay Equity Office submitted that important policy reasons support the restriction on testimony by Review Officers. She submitted that it is critical to the Review Services process that the confidentiality of conversations between Review Officers and parties be respected, particularly during settlement discussions which are normally privileged and must be seen to be protected. Otherwise, she suggested, parties would not be willing to enter into the mediation aspect of the process. We agree these are very important considerations. However, the same policy considerations are applicable to orders of Review Officers. In writing her Order as she did, Ms Sullivan indicated that her conversations with M. Geoffroy were significant to the finding that there had been a contravention of the Act. In these circumstances she deemed it appropriate to disclose these conversations. We consider this to have been a wise decision. However, the decision having been made, it is not possible for us to restore the confidentiality.

DECISION OF MARGARET KVETAN, MEMBER

I concur with the majority decision except for the conclusions in paragraphs 105, 106 and 108 about M^me Bastien's competence in finance and accounting and her performance in those areas.
The Clerk-Treasurer position is the senior administrative full-time position in the Village and controls information and process. Council makes decisions, including all financial decisions, from information provided by and based on recommendations from the Clerk-Treasurer. There are 4 components to this job: Clerk, Treasurer, Tax Collector and Secretary-Receptionist. All who testified agreed that M^me Bastien performed the Clerk component of the job well. The performance problems were largely with the Treasurer component.
I believe that M^me Bastien did not fully understand the scope and nature of the job. In her 1992 self-evaluation, she rated herself "poor" in 3 areas: accounting for the municipality, ensuring that the budget was followed and the preparation of monthly financial reports. Yet, of the 10 objectives she listed, all related to the Clerk component of her job. In her 1993 self-evaluation, of the 12 objectives she listed, 11 related to the Clerk component. The twelfth was to take a bookkeeping course which was a prerequisite to the Municipal Finance Program. During her testimony she said that she considered all parts of her job to be equally important.
In a number of instances, M^me Bastien's performance problems, considered individually, might not be considered to be of a serious nature. However, considered together in her overall performance over the years, they would have caused concern to Council. An employer has the right to expect not only a good level of performance from an employee, but a consistent level of good performance over the course of the employment period.
I grant that M^me Bastien had a heavy workload in 1993 and that she advised M. Geoffroy that she was having difficulty getting through her work, particularly in not being able to do the bank reconciliations for several months. However, she acknowledged in her evidence that bank reconciliations were a very high priority for her, Council and the auditors, but she left these and went on to do other work. M^me Bastien needs ongoing direction and supervision in accounting work. A Clerk-Treasurer position is one which the incumbent should be able to carry out with a fair degree of independence and little supervision. Her inability to manage this part of her job and her accounting errors in general raise serious doubts in my mind about her ability to work in a position with a large component of finance and accounting.
Council itself functions on a part-time basis. It must be able to rely on the incumbent to know the job and provide it with timely and accurate financial information. It is consequently difficult to understand why Council did not formally address M^me Bastien's performance problems much earlier. Until the February 3, 1994 evaluation, Council's directions to M^me Bastien were general and vague with respect to her performance. Even when Council placed her on probation, they did not give her much information on why they were taking this action or what improvement she was expected to achieve. They certainly did not tell her what she might expect would happen at the end of probation. It was only 4 days before she was fired that she received an undated letter telling her that she was on probation until July 31, 1994. Arguably, when she was placed on probation at the April 5 Council meeting, she should have realized that her employment was at risk. However, from her point of view, what she was being told at that point was not very different from the vague feedback she had received from Council previously.
The Village contributed to and exacerbated the performance problems by:

∙ not clearly telling M^me Bastien at the outset of her employment what their expectations were;

∙ not regularly evaluating her performance in a formal way;

∙ not clearly telling her in detail what they considered to be her performance problems; and

∙ not making sure that she understood what their concerns were.

In 1991, M^me Bastien successfully completed the Municipal Administration Program at St. Lawrence College. In the spring of 1994 she completed the bookkeeping course which was the prerequisite for the Municipal Finance Program which she was planning to take in the fall of 1994. The latter appears to cover the special requirements and peculiarities of municipal financing for those who already have a knowledge of accounting. M^me Bastien testified that she would have taken the Program after she was fired, but for its cost. There was no evidence, however, as to whether she had tried to obtain assistance for training from the Employment Insurance Commission. In his submissions subsequent to the hearing, M^me Bastien's counsel did not indicate that she had taken any steps to upgrade her skills after she was fired.
M^me Bastien had been in the Clerk-Treasurer position for 4 years when she was placed on probation. There were performance problems in accounting throughout that period. I don't agree that this is a matter of "gaps in proficiency at managing municipal funds" that can or should be remedied by allowing her to upgrade her skills after reinstatement through further training and additional support from the auditors. This position in a municipality of the size of Plantagenet is comparable in responsibility to a Director or Commissioner of Finance for a large municipality. This is not a trainee position. It is inconceivable that a large municipality would tolerate an incumbent without the necessary basic skills for such a major component of the position as accounting, let alone allow that incumbent to start acquiring those skills more than 7 years after she was first hired into the position.
Although I concur that reinstatement is an appropriate remedy in the circumstances of this case, I would reinstate M^me Bastien into a position which is a reasonable alternative to her former position as Clerk-Treasurer of the Village, but which has no significant responsibility for finance and accounting.

Dated at Toronto this 15th day of May, 1997.

Phyllis Gordon

Chair

Bruce Budd

Member

Margaret Kvetan