Helen Henderson Care Centre v. Service Employees International Union Local 183, 1997 CanLII 12233

PAY EQUITY HEARINGS TRIBUNAL

PE-0626-96 Helen Henderson Care Centre, Applicant v. Service Employees International Union Local 183, Respondent

PE-0627-97 Barbara Adams, Applicant v. Canadian Mental Health Association, Respondent

PE-0631-97 Chelsey Park Retirement Community, Applicant v. London and District Service Workers Union Local 220, Respondent

PE-0632-97 Caressant Care Nursing Home, Applicant v. London and District Service Workers Union Local 220, Respondent

PE-0633-97 Kensington Village Retirement Home, Applicant v. London and District Service Workers Union Local 220, Respondent

Before: Mary Anne McKellar, Vice chair, and Members Geri Sheedy and Charles Taccone

DECISION OF THE TRIBUNAL, JULY 30, 1997

1At the hearing scheduled for August 27, 1997, the panel will entertain the parties’ submissions on the question set out in paragraphs 2 and 3 below.

2Those parties who take the position that we have no jurisdiction to hear these matters appear to ground their position on the proposition that as a consequence of the amendments to the Pay Equity Act contained in the Savings and Restructuring Act, 1996, S.O. 1996, c.1, the Tribunal is without jurisdiction to deal with any matters relating to the proxy method of comparison. If a pay equity plan using the proxy method of comparison had been posted on or before December 31, 1996, how would acceptance of this proposition impact on (a) the statutory obligations to implement and maintain pay equity; and (b) the consequences of any changed circumstances in the establishment.

3Those parties who take the position that we do have jurisdiction to hear these matters appear to ground their position on the proposition that, in the absence of a clearly expressed intention to the contrary, legislative amendments should not be interpreted so as to take away or impair accrued or accruing rights. What is the accrued or accruing right being asserted here? Is it the right to have these matters adjudicated or processed in accordance with the Pay Equity Act as it stood on December 31, 1996? Is it the right to the utilization of the proxy method of comparison? When and how did the right asserted accrue or begin to accrue? How does the concept of accrued or accruing or vesting rights play out in a remedial statutory scheme that is pro-active rather than complaint based?

4In formulating the above questions, the panel has considered a number of authorities that were not cited to us by the parties in their written submissions. In addition to any authorities the parties may wish to refer to at the hearing, they may want to comment on the following:

Free Lanka Insurance Co. Ltd. V. Ramasinghe (1964) A.C. 541

Alkali Lake Indian Band v. Westcoast Transmission Co. 1985 CanLII 721 (BC CA), [1986] 1 W.W.R. 766 (B.C.C.A.)

Bastien v. Canada (1992), 53 F.T.R. 81

Fewtrell v. Martin Transports Ltd., 1938 CanLII 112 (ON CA), [1938] O.R. 674 (C.A.)

Godin v. New Brunswick (Minister of Health & Community Services) (1993), 1993 CanLII 6974 (NB QB), 137 N.B.R. (2d) 95

Kaiser v. Bufton’s Flowers Ltd. (1995), 1995 CanLII 1248 (BC CA), 2 B.C.L.R. (3d) 85, aff’g (1994), 97 B.C.L.R. (2d) 166

Massey-Ferguson Finance Co. Of Canada v. Kluz, 1973 CanLII 150 (SCC), [1974] S.C.R. 474

Petrofina Canada Ltd. v. Lynn (1978), 1978 CanLII 1734 (ON HCJ), 19 O.R. (2d) 97 (Div. Ct.)

Canadian Imperial Bank of Commerce v. Noseworthy (1980), 1980 CanLII 2722 (NL CA), 117 D.L.R. (3d) 99 (Nfld. C.A.), rev’g 1979 CanLII 2710 (NL SC), 101 D.L.R. (3d) 656

Picard v. Canada (Public Service Staff Relations Board), 1977 CanLII 3036 (FCA), [1978] 2 F.C. 296 (C.A.)

R. v. Kent 1924 CanLII 14 (SCC), [1924] S.C.R. 388

MacInnis v. Saskatchewan (Department of Labour Standards), 1996 CanLII 6925 (SK QB), [1996] 4 W.W.R. 254 (Sask. Q.B.)

Re Superior Separator Company of Canada Limited, 1953 CanLII 86 (ON HCJ), [1953] O.R. 546 (H.C.J.), aff’d [1954] O.R. 113

5At the hearing on August 27, 1997, the parties will be expected to make their submissions on all of the matters set out in Paragraphs 2, 3 and 4 above in the following order. Those parties taking the position that we do not have jurisdiction to hear these matters are considered to be moving parties and they will address the issues first. They are expected to work out among themselves the order in which we will hear from each of them. Those parties taking the position that we do have jurisdiction over these matters will respond. They are also expected to work out among themselves the order in which we hear from each of them. There will be a right of reply for the moving parties.