PAY EQUITY HEARINGS TRIBUNAL

0592-96 Corporation of the County of Wellington, Applicant v. Carol Butler Respondent

Before: Phyllis Gordon, Chair, and Members Geri Sheedy and Margaret Kvetan

Appearances: Angela Rae for the Applicant; Catherine Bickley for the Respondent

Cite As: Wellington (No. 1) (January 9, 1997) 0592-96 (P.E.H.T.)

DECISION OF THE TRIBUNAL

1. The Applicant in this case, the Corporation of the County of Wellington, ("the County") challenges that portion of a Review Officer's Order which orders it to include the job class of "Provider" in its pay equity plan. "Providers" provide subsidized child care in their homes for children in the County. The Respondent, Carol Butler, one of many Providers, provided subsidized home day care, and was in a contractual arrangement with the County from August, 1991 to June, 1995. She complained to the Pay Equity Office in December of 1994 that she should be considered an employee of the County for the purposes of pay equity. The Order, which is the subject of this hearing, arose out of the investigation of her complaint and was issued on February 1, 1996.

2. Notice of this proceeding was sent to all the Contractual Home Day Care Providers who provided these services in the County of Wellington from January 1, 1990 to May 31, 1996. In response to this Notice, two Providers, Beth Leith and Mary Margaret Spencer, filed Responses with the Tribunal, indicating their interest to participate. Ms Leith and Ms Spencer are not represented.

3. On December 17, 1996, counsel for the County and for Ms Butler made submissions on several preliminary matters. We had received a letter from Ms Leith in which she advised that she would be unable to attend the hearing on that day, but that she had authorized Ms Spencer to speak on her behalf. Ms Spencer did not, however, attend at the hearing. We made oral rulings on some of the preliminary matters and reserved on the rest. As there was insufficient time to hear argument about the disclosure issues, counsel subsequently provided us with written submissions on disclosure.

4. This decision determines the following preliminary matters:

• the dates and location of the hearing;

• the participation of Ms Leith and Ms Spencer;

• the relevant date for determining whether the Providers are a job class of employees for the purposes of the County's pay equity plan; and

• disclosure issues.

Dates and location of the hearing

5. We have heard from counsel respecting the offered hearing dates, and set the following dates for the hearing: January 20, 27, 30, and April 7, 8, 9, 14, 23, 24, and May 7, 22, 28, and 29, 1997. We have considered the request of Ms Leith and Ms Spencer that the hearing take place in Kitchener and not in Toronto. On the basis that holding the hearing in Toronto is the most effective use of fiscal resources, is the location desired by the County and Ms Butler, and, would facilitate an earlier hearing, we deny this request. The hearing will be in Toronto, at the Tribunal's hearing rooms at 150 Eglinton Avenue East.

The participation of Ms Leith and Ms Spencer

6. Counsel for the County submits that as Ms Leith and Ms Spencer were not complainants at Review Services initially they are not automatically entitled to party status pursuant to s. 32(1)(a) of the Pay Equity Act, R. S. O. 1990, c.P.7, as amended (the "Act"). She also suggests that their pleadings do not indicate they offer any unique perspective or interest that will not otherwise be addressed. She agreed that her client would not experience any particular prejudice should they be permitted to participate, other than the potential of remedy. Counsel for Ms Butler took no position with respect to the participation of Ms Leith and Ms Spencer.

7. The County has sought this hearing because it takes issue with the order that Providers be included as a job class in the County's pay equity plan. Conversely, Ms Butler seeks to have that aspect of the Order upheld. The appropriateness of a Provider job class--which entails determining whether the Providers are employees of the County--is the issue before us. Pay equity adjustments result when the work performed by members of a job class has been undervalued. Any potential right to a pay equity adjustment for Ms Butler will flow only if she is a member of a female job class which has been undervalued. Thus, this case is not limited to the nature of the specific contractual relationship between Ms Butler and the County. As members of a potential job class, Ms Leith and Ms Spencer have a direct interest in this proceeding.

8. Thus, it is our view that Ms Leith and Ms Spencer are entitled to participate in the hearing and to be parties at it. Section 32(1)(d) of the Act permits persons who are entitled by law to be parties to be parties at a hearing before the Hearings Tribunal. Given their direct interest in this case, we find they are so entitled.

9. If Ms Leith or Ms Spencer wish to exercise their right to participate, they are to attend on January 20, 1997, the next day of this hearing, in person or by an agent appointed by them pursuant to s. 32(3) of the Act. We draw their attention to Rule 11.02 of the Tribunal’s Rules of Practice which provides:

Where any person properly served with a notice of hearing fails to attend at the scheduled hearing, the Tribunal may proceed and dispose of the case in that person’s absence and without further notice.

On January 20, 1997, we will clarify the process for the participation of Ms Leith and Ms

Spencer. If they attend, we will amend the style of cause at that time and add them as

Respondents.

The relevant date for determining whether the Providers are a job class of employees for the purposes of the County's pay equity plan

10. Counsel for the County urges us to adopt the date in December, 1994 when Ms Butler filed her complaint (the specific date is not mentioned in the materials), as the most recent relevant date, on the basis that this is the date when the issue crystallized. She argues that, with the passage of time, an earlier date would be prejudicial. It is her view that the case law regarding the relevant date for ascertaining the identity of the pay equity employer is not determinative of the issue in this case. In her view this is not a situation where the County deliberately attempted to deny pay equity rights to the Providers but instead, considered the Providers to be independent contractors. Counsel does not believe that a lengthy time-frame, without a fixed date for focusing the issue of whether the Providers should have been included in the plan, is appropriate. She urges us to adopt a flexible approach to the question and hold the relevant date to be the date of Ms Butler’s complaint to the Pay Equity Commission.

11. Counsel for Ms Butler submits that although January 1, 1988 is a useful date to calculate an employer’s obligation under the Act, the County had no specific obligation to her client at that time, as Ms Butler was not a Provider then. Any rights of Providers to pay adjustments would arise as of January 1, 1990, for any time each was a Provider on or after that date. She agrees that the Tribunal has been somewhat flexible with respect to the receipt of evidence in the employer cases and recommends that we adopt a pragmatic approach with respect to the evidence in this case. Evidence could be led covering a lengthy time-frame and the parties could agree to what extent it would be representative of the situation from January 1, 1988 to January 1, 1990. She disagrees that the date of the complaint, December of 1994, is appropriate, as the evidence would show that significant changes occurred around that time making that date unrepresentative.

12. In our view, as the Act redresses systemic gender discrimination in compensation for work in female job classes, individual employees are benefitted only indirectly, as a result of their membership in female job classes. An individual employee does not receive an adjusted salary in a vacuum; it is the work performed by a job class that is the subject of a comparison and for which an adjustment may be necessary. Under the time frames established in the Act, public sector establishments should have worked on their pay equity plans, identified and calculated any required adjustments and made the necessary adjustments to payroll so that the affected employees would begin to receive their adjusted pay at the beginning of 1990. At the start of this process, employers had to first determine what work was being done in order to organize it into job classes. Also, as the Act directs that the number of employees is determined at the effective date, defined as January 1, 1988, employers had to know who were their employees as of that date. They also had to determine the gender predominance of job classes, as these are the units of comparison under the Act. The gender composition of a job class, based (in part) on numerical percentages, would be based on the numbers as of January 1, 1988. Thus, while the exercise was to have been carried out over a two-year period and completed by January 1, 1990, we find the relevant date for determining whether the Providers should have been a job class to be the effective date of the Act, January 1, 1988. The decision will be based on our assessment of the situation as of January 1, 1988 when the process of pay equity should have begun.

13. Our understanding of the relationship between the Providers and the County will be informed by information complied over a period of time and the continuum of events, understandings and arrangements. The appropriate time period for this review starts January 1, 1988 and may include information up to the date of the complaint in December, 1994. Thus, our understanding of the relationship will be informed by what counsel see as the most relevant evidence over this time period, but our inquiry will focus on whether any pertinent aspect of the evidence can be considered to describe what was in fact the situation on January 1, 1988. In this way, the evidentiary problems arising from the legal requirement to assess job classes as of January 1, 1988 will be alleviated.

Disclosure issues

14. The Tribunal jurisprudence on the issue of disclosure is clear. Where documents or information are arguably relevant, the Tribunal has ordered disclosure. In this case, the County and Ms Butler have requested and refused disclosure for various reasons. We have heard argument and read the submissions and order the following disclosure.

15. With respect to the County's request for disclosure from Ms Butler, we will deal first with the request for income tax returns. We order Ms Butler to bring to the hearing her copies of any tax returns in her possession for the years 1988-1994 inclusive. We further order that she request from Revenue Canada copies of any returns that she does not have. Although all the information contained in these returns is not necessarily relevant to these proceedings, the Tribunal will determine at the hearing what information is to be disclosed to the County.

16. We further order Ms Butler to disclose the following for the period from January 1, 1988 to the date of her complaint in December, 1994:

∙ the numbers of private children and subsidy children cared for by her as requested by the County, but not their names;

∙ any documents, including contracts, agreements, regulations, rules, invoices, receipts, list of equipments, etc. that have been requested and are in the possession of Ms Butler; and

∙ copies of any advertisements and flyers which Ms Butler may have generated to attract parents to her service.

Any such documents generated and used by the County should be in its possession and, therefore, we do not order Ms Butler to provide these.

17. With respect to Ms Butler's request for disclosure from the County, we order the County to disclose the following for the time period from January 1, 1988 to the date of Ms Butler’s complaint in December, 1994:

∙ samples of all contracts ;

∙ Private Home Day Care Attendance Registers in its possession; and

∙ all correspondence in its possession of a general nature sent to all the Providers.

The parties requested from each other all documents on which they intend to rely on at the hearing. Although the Tribunal encourages the exchange of documents between parties prior to being submitted at the hearing, it is not a requirement in our Rules of Practice.

18. In her December 20, 1996 submission on behalf of Ms Butler, Ms Bickley informed the Tribunal and the County that certain disclosure had been requested from Ms Leith and Ms Spencer and that each had agreed to provide the requested disclosure. Any further disclosure issues relating to these parties, including the requests for disclosure made by the County, will be dealt with as they arise.

Dated at Toronto this 9th day of January, 1997:

Phyllis Gordon

Chair

Margaret Kvetan

Member

Geri Sheedy

Member