PAY EQUITY HEARINGS TRIBUNAL
PE 0606-96 The Dufferin-Peel Roman Catholic Separate School Board, Applicant v. Several Employees and A Group of Employees, Respondents
PE 0623-96 Nancy Tallevi and Groups of Employees, Applicants v. Dufferin-Peel Roman Catholic Separate School Board, Respondent
PE 0628-97 Donna L. Reid, Applicant v. Dufferin-Peel Roman Catholic Separate School Board, Respondent
PE 0640-97 Jean Pedersen, Applicant v. Dufferin-Peel Roman Catholic Separate School Board, Respondent
Before: Heather MacNaughton, Chair, and Members Bruce Budd and Charles Taccone
Cite As: Dufferin-Peel (No. 3) (May 7, 1998) 0606-96; 0623-96;0628-97;0640-97 (P.E.H.T.)
DECISION OF THE TRIBUNAL, May 7, 1998
On March 25, 1998, an agent on behalf of Donna Reid and Jean Pedersen, and counsel on behalf of Nancy Tallevi and the Anonymous Group of Employees (collectively the "Employees") sought an order from the Tribunal requiring the Dufferin-Peel Roman Catholic Separate School Board (the "Board") to allow the Employees time off work without loss of pay to participate in these hearings. At the direction of the panel the parties made their arguments by written submissions.
This issue has rarely been argued before the Tribunal in part because it is often resolved by way of agreement at a prehearing and because when employees are represented by a bargaining agent, it may otherwise be covered by agreement. Without an agreement, the Tribunal is left to determine this issue within the strictures of our jurisdiction.
Ruling
- The Tribunal declines to make the order requested for the reasons which follow. We recognize that this outcome will impact the Employees whom, we understand, are least able to afford its consequences. Our ruling does not however prevent the Employees, should they be successful in their Applications, from asking the Tribunal to consider the matter again as part of argument in support of a "make whole" order pursuant to the Tribunal's remedial authority.
The Facts
The parties have embarked on what will be a lengthy hearing. The Board has applied to revoke an Order of a Review Officer which found the pay equity process undertaken by them to have failed to meet the requirements of the Pay Equity Act R.S.O. 1990, c. P.7 as amended (the "Act"). The Employees have cross applied and, in effect, seek a variation of the Review Officer's Order.
None of the Employees is represented by a bargaining agent or subject to a collective agreement. As a result, in order to participate in the hearing they must be personally present at the hearing - there is no representative, presumably paid by an association or union, who can attend and instruct counsel on their behalf. Further, unlike many unionized employees, these workers have no negotiated agreement with their employer which provides for paid time when participating in hearings before tribunals, boards of arbitration and judicial proceedings.
The Employees requested that the Board pay them their regular wages while attending the hearings. The Board refused to do so. Instead, the Board agreed that the Employees would be allowed the necessary time off to attend the hearings and suggested that the Employees could use holiday time, paid lieu time (where available), or take unpaid leave.
Reasons
As the parties note in their submissions, the Tribunal has no inherent jurisdiction to make the order requested. The power to do so must be found in our governing statute and depends upon explicit statutory language. Re Hamilton-Wentworth and Save the Valley Committee (1985), 1985 CanLII 1957 (ON HCJ), 51 O.R. (2d) 23 (Div. Ct.); Ontario Human Rights Commission v. Liquor Control Board of Ontario (1988), 1988 CanLII 8926 (ON HCJDC), 19 C.C.E.L. 172 (Ont. Div. Ct.); Hospital for Sick Children (No. 1) (1991), 2 P.E.R. 174; Orkin, The Law of Costs (2d ed.)1993: Canada Law Book.
Counsel for Nancy Tallevi and the Anonymous Group of Employees concedes that a review of the relevant provisions of the Act reveals no clear authority in the Tribunal to grant the order sought. The question, therefore, becomes whether the general order-making authority expressed in section 25(2)(g) can support the Employees' request. That section states:
25(2) The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the forgoing, the Hearings Tribunal, ...
(g) may order a party to a proceeding to take such action or refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances.
This section expresses the Legislature's intention that the Tribunal have the ability to make all orders necessary to address the issue which is before it for decision. While we disagree with the Board's submission that the Tribunal's order-making authority is somehow constrained by section 29(2)(b), it is legitimate to query whether the breadth of section 25(2)(g) could support an "interim" order of the nature sought.
The Employees are correct in distinguishing their request from a true "costs" order. Yet, in our view, the restrictions surrounding the jurisdiction to award costs is even more persuasive when applied to orders which have as their purpose the indemnification of a party to enable their participation in a hearing in advance of any finding on the merits. In Re Hamilton-Wentworth and Save the Valley Committee, supra, a Joint Board in a proceeding under the Consolidated Hearings Act, 1981 S.O. c. 20 ordered the applicant to pay to two groups of intervenors their "costs in advance". The Joint Board did so because, in its words:
"it remains steadfastly committed to a fundamental principle underlying the hearing process: that principle, simply stated, is 'to ensure that parties to this hearing may participate and be heard in a fair, effective and meaningful fashion.'" (supra, at p. 29) .
- In overturning the Joint Board the Divisional Court concluded:
While the Board has a broad discretion in its power to award costs, I am satisfied that this Board has not awarded "costs" here, but rather, has attempted to compel the applicant to provide intervenor funding, something which the Board has no jurisdiction to do.
It is for the Legislature, in clear language, to so empower a board or tribunal, should it be found desirable as a matter of public policy. (supra, per Holland, J. at p. 43)
In the absence of clear language permitting the Tribunal to make the order requested by the Employees we must refuse to do so. The Legislature, in its discretion, created a statutory scheme in which the Employees are a necessary party to the Board's application to revoke the review officers order. In so doing it chose not to provide for the applicant to remunerate the responding employees.
We agree with the earlier decision of this Tribunal in Metro Toronto (No. 1) (1995), 6 P.E.R. 58 in which it was held:
"...the employees are not asking us to order the employer to fund their participation as a remedy or compensation for the employer's breach of the Act. They are asking us to make the order before we hear evidence or make any finding on the allegations the applicants have made." This is analogous to Hospital for Sick Children (1991), 2 P.E.R. 174, in which the Tribunal was asked by a group of employees, at the beginning of the Hearing, to order the employer to fund their legal costs. That case is similar in that funding was sought before any finding had been made. At paragraph 14, the Tribunal said:
'There is nothing in the Pay Equity Act nor in any other statute which authorizes the Tribunal to make an interim order for costs.'
We similarly conclude that there is no jurisdiction to make an order at the start of a Hearing, requiring the employer to pay the regular wages of the employees who want to participate in the Hearing."
The Employees make a further argument in support of their claim based on section 9(2) of the Act. Specifically, they argue that "the failure of the Tribunal to award the interim costs amounts to a contravention of section 9(2) of the Act. Non-unionized women will essentially be left out of the process, and will accordingly be discriminated against by the employer because of their decision to participate in the process."
It is not entirely clear whether the Employees assert that the Tribunal or the Employer is in breach of section 9(2). Obviously, the Tribunal, being neither an employer, bargaining agent, or employee is not subject to section 9(2). Further, it cannot be the case that an employer pursuing a right of appeal granted by the Act is thereby in breach of section 9(2). The argument of the Employees must be that the Board's failure to provide them with additional time off with pay to attend the hearing is the imposition of a penalty, or discriminates against them for participating in a proceeding under the Act, and is therefore a breach of section 9(2). This argument is more properly raised in final submissions.
We are without jurisdiction to consider the submissions on the Charter in the absence of proper notice to the Attorneys-General pursuant to s. 109 of the Courts of Justice Act R.S.O. 1990, c. C.43. We note however that the Tribunal considered the Charter in Hospital for Sick Children (No.1), supra at p. 177 and concluded that it did not support the request for an interim order for payment of legal costs. Similar reasoning is applicable here.
Finally, the Employees allege that the failure to order the Board to pay regular wages while they attend the hearing will in some way result in a failure of natural justice. We agree that the result of our decision may make participation in this hearing financially onerous for the Employees and that this financial burden may constructively impact on the Employees' choice to exercise their rights to participate. While we regret this outcome, it does not prevent participation in the hearing as that concept is understood in the context of natural justice.
For the reasons stated above the Employees' motion is denied.
Dated at Toronto this 7th day of May, 1998:
“Heather M. MacNaughton”
Heather M. MacNaughton
Chair
“Charles Taccone”
Charles Taccone
Employer Member
“Bruce Budd”
Bruce Budd
Employee Member