PAY EQUITY HEARINGS TRIBUNAL
0636-97 Group of Employees (Pay Equity Office), Applicant v. The Crown in Right of Ontario (Management Board of Cabinet), Respondent
Before: Heather M. MacNaughton, Chair, and Members Margaret Kvetan and Pauline R. Seville
Appearances: Judith Killoran for the Applicants; Stephen Patterson for the Respondent(s); and Robert McKinnon for the Pay Equity Office
Cite As: Management Board (Review Officers) (No. 1) July 6, 1998 0636-97 (P.E.H.T.)
DECISION OF THE TRIBUNAL, JULY 6, 1998
The Respondent intends to seek a dismissal of this application on the ground that the Applicants do not constitute a female job class. In furtherance of that motion the Respondent issued and served a Summons to Witness upon Ann Peers, the Pay Equity Commissioner, requiring her to attend at the hearing of the motion and to bring with her a number of documents including: the personnel files of all employees who are, or were Review Offciers; records of competitions; records of training; and records of acting assignments, direct assignments and secondments.
The Applicants have served a Summons to Witness on a Review Officer, Ron Chyczij, requiring him to attend at the hearing of the motion and to bring with him copies of all Review Officers’ orders dealing with the issue of job class.
The Pay Equity Office advised the Tribunal, and the parties, that it objected to the Summonses and sought an order quashing them. Counsel on behalf of the Pay Equity Office submitted that the Summonses were improperly issued under Section 31 of the Pay Equity Act, R.S.O. 1990, c.P.7 as amended (the “Act”) in that consent of the Tribunal had not been obtained prior to their issuance. He further argued that the Summonses would breach the qualified privilege accorded employees of the Pay Equity Commission in Section 31 of the Act. Further, he said the Summonses were overly broad and sought documents that were not arguably relevant to the issues before the Tribunal on the motion.
Section 31 of the Act reads:
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.
It requires consent of the Hearings Tribunal before a Summons may issue. The Tribunal in New Liskeard Board of Police Commissioners (No. 1) (1990), 2 P.E.R. 39 set out a two-step process for dealing with potential Summonses. While the two-step process was not followed in this case, we intend to treat this argument as a request for consent, which is opposed.
Section 31 and the Tribunal’s jurisprudence make clear that the privilege that is accorded the evidence of a Review Officer, or of an employee of the Pay Equity Commission, is a qualified privilege designed to protect them from being forced to give evidence about the confidential work of the Commission, including the investigation, mediation and settlement initiatives it undertakes while dealing with issues under the Act.
The Applicants and the Respondents do not dispute the existence of the qualified privilege. Further, they accept that the Tribunal has held in New Liskeard, supra, and in Brampton Public Library Board (1993), 4 P.E.R. 81, that the consent of the Tribunal will only be granted in extraordinary circumstances. They submit, however, that the circumstances of this case are extraordinary, such that the Tribunal should grant its consent.
Counsel for the Respondent argues that the fact that an anonymous group of Review Officers are the Applicants in this matter makes these circumstances extraordinary. In the New Liskeard and Brampton Public Library Board decisions, supra, consent was not granted because it was one of the parties, which was the subject of a Review Officer’s order, which sought to have the Review Officers’ evidence compelled. Those decisions, they argued, fell squarely within the “evil” section 31 was intended to protect against. However, the evidence being sought here is not evidence of an investigative or settlement process and the concerns about openness in negotiations and the free exchange of communication do not, therefore, attain.
The Respondents further submit that, in order to argue its motion with respect to the appropriateness of the job class, they will have to show that pursuant to section 1 (1) of the Act, Review Officers have similar duties, similar responsibilities, similar qualifications, and their positions are filled by similar recruiting methods as the other members of the job class. The documents sought through their Summons, they say, will assist them in substantiating these similarities. They submit that the documents are therefore arguably relevant.
Counsel for the Applicants argued that she required evidence of the summonsed Review Officer in order to establish the administrative practice of the Pay Equity Office with respect to orders regarding job class. They argued that Section 31 was not drafted in anticipation of employees of the Pay Equity Commission being Applicants before us. Further, they argued that the application in this case is unique because the Applicants do not seek the confirmation, variation or revocation of a Review Officer’s Order as no order was ever issued.
Decision
We adopt the prior decisions of the Tribunal and accept that our consent to a Summons to Witness of an employee of the Pay Equity Commission should not be readily granted and only in extraordinary circumstances. We conclude, however, the extraordinary circumstances exist in this case. Because the Applicants are Review Officers, if the argument of the Pay Equity Office were taken to its extreme, they might well be unable to mount a case before us and would, therefore, be potentially shut out from the benefits to which t they are entitled, as employees and applicants, under the Act. In our view Section 31 was not intended to prevent Review Officers from testifying in a case in which they are an Applicant and which will not expose the confidential work of the Commission as between parties to a dispute.
We are, therefore, prepared to grant consent to the Summonses to Witness. The matter does not end there, however, because issues have been raised as to the breadth of the Summonses. We are of the view that the Summons issued by the Respondents is overly broad. While some of the documents sought pursuant to it are arguably relevant to the determination of the job class issue before us, we are of the view that the scope of the summons should be limited.
With respect to the Respondent’s Summon, as it relates to personnel files, we are prepared to consent to issue a Summons which limits the documentary production to:
i) the curriculum vitae of Review Officers current to the date on which they applied for, or were promoted or seconded into the position of Review Officer;
ii) any training requests or documentation that would indicate the training undertaken by the Review Officer, including those portions of performance appraisals which indicate training plans; and
iii) any internal applications for promotions, acting assignments, direct placements and secondments.
We further order that all personal information identifying individual Review Officers be deleted from the personnel files to be produced.
With respect to the other documents sought in the Summons, we agree that they are arguably relevant. However, we order that all personal information identifying individual Review Officers be deleted prior to production. We remind the parties that the inquiry we are to undertake in determining a job class, is based on the duties, responsibilities, qualifications and recruiting for the position of Review Officer. It is not incumbent-specific and, therefore, incumbent-specific information is not relevant.
We are mindful of the submission of counsel for the Respondent that deleting personal identifying information may hamper his cross-examination should those employees be subsequently called a witness. We, therefore, order that in addition to exchanging lists of the witnesses they intend to call, to the extent that current or former Review Officers are to be called to testify, the party calling them as witnesses will provide to the other a resume which indicates their qualifications and experience at the time they were appointed into the position of Review Officer.
It was apparent to the panel that the Summons to Ann Peers was not intended to elicit her evidence but was merely intended to obtain access to the documents she was requested to bring with her. In light of our decision, it may well be possible for the Respondent and the Pay Equity Office to reach agreement regarding the production of the documents sought without the necessity of an appearance by Ann Peers or to agree upon another appropriate witness.
With respect to the Summons issued by the Applicants, we are of the view that the information sought pursuant to it is not relevant to the issue we are to determine. As has been well established in our jurisprudence, a hearing before the Tribunal is a hearing de novo and we are not bound by Review Officers’ orders. Review Officers’ orders have no precedential value, nor are they persuasive of the determination of the appropriateness of the job class defined in Section 1(1) of the Act, a matter that is solely within our jurisdiction to determine. We were not persuaded that the orders sought will be of any assistance to us. We, therefore, quash the summons as it relates to documentary production.
During the course of her argument counsel for the Applicants posed a number of questions to the panel which were thought-provoking and may well be required to be answered during the course of evidence. However, we decline to answer them in the abstract except to indicate that we are of the view that Review Officers who testify are permitted to give evidence about the general scope of their duties and responsibilities but that in so doing they should avoid specific reference to any particular file or information which might identify the employer, employee or union. In the event that this limitation obstructs our ability to make the determination required of us, we will reconsider it in the hearing and will at that time invite submission of the parties, including the Pay Equity Office, as to the appropriate scope of the evidence.
Dated at Toronto this 6th day of July, 1998:
"Heather M. MacNaughton" Heather M. MacNaughton Chair
"Pauline R. Seville" Pauline R. Seville Member
"Margaret Kvetan" Margaret Kvetan Member