Helen Henderson Care Centre v. Service Employees International Union, Local 183, 1998 CanLII 14730

Pay Equity Hearings Tribunal

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

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

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

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

0655-97 Canadian Union of Employees, Local 3009, Applicant v. New Village Retirement Home/Pine Villa Nursing Home Inc., Respondent

Before: Mary Anne McKellar, Vice-Chair, and Members Margaret Kvetan and Pauline Seville

DECISION OF THE TRIBUNAL, JUNE 19, 1998

1The Service Employees International Union ("SEIU") and the London and District Service Workers Union, Local 220 ("LDSWU") seek to have the applications in Tribunal Files Nos. PE 0626-96; PE 0631-97; PE 0632-97; and PE 0633-97 dismissed on the grounds that the Applicant in each of those files failed to finalize and Agreed Statement of Facts as contemplated by the Pre-Hearing Memorandum of Agreement entered into on January 19, 1998. Paragraph 4 of the Pre-Hearing Memorandum dealt with the possibility that no agreement on the facts could be reached and specified that in that event, the parties would commence their evidence on June 22, 1998. This motion is dismissed.

2The Respondent in Tribunal File PE 0655-97 has requested an adjournment of the hearings scheduled for June 22 - 25, 1998 on the grounds that no Agreed Statement of Facts has been prepared, and it is not prepared to proceed with the evidence in this matter. The respondent in Tribunal File PE 0632-97 supports the request for an adjournment. Had these been the only grounds asserted in support of the adjournment request, the Tribunal would not have granted it. As noted above, the Pre-Hearing Memorandum clearly contemplated that the parties might not conclude an Agreed Statement of Facts, and that the hearing would nevertheless proceed on June 22, 1998.

3Mr. Winter, the agent for the Applicants in Tribunal Files PE 0626-97; PE 0631-97; and PE 0633-97 has also requested an adjournment of the hearing dates scheduled for June 22 -25, 1998 on the grounds that he is unable to attend for medical reasons. We do not know if someone else from Mr. Winter's office could have attended the hearings in his stead, however, given the unforeseeable nature of the medical condition involved and the fact that he represents applicants and would be presenting his case first, we will not compel such a substitution. We are, however, concerned about the delay that this adjournment will occasion to the hearing of these matters, and to the possible difficulties in finding available new hearing dates. If it appears that Mr. Winter's medical condition is likely to prevent him from attending regularly scheduled hearings in the future, serious consideration should be given to ensuring someone else is available to act. Consequently, the adjournment request is granted, but it is subject to the conditions set out in the following paragraphs.

4The parties are directed to attend a further Pre-Hearing Conference on Wednesday, June 24, 1998 at 9:30 a.m. at the Tribunals' Office, 2^nd Floor Hearing Rooms, 150 Eglinton Ave. East, Toronto.

5At the Pre-Hearing Conference the parties should be prepared to discuss and attempt to agree upon the following: finalizing their Agreed Statement of Facts; identifying in writing to each other and the Tribunal the witnesses that each intends to call in the event that no agreement can be reached; providing such witnesses' evidence in chief by way of affidavits, thereby confining their viva voce testimony to cross-examination and any re-examination; compensating the witnesses previously summoned by the SEIU for any wage loss arising as a result of this adjournment; and setting further hearing days between September 21, 1998 and October 7, 1998.

6The parties should further be prepared to discuss and attempt to reach agreement on the procedure to be followed for the hearing of these applications which have been listed together for hearing. The following are some possibilities: the applications can be heard together; the applications can be heard individually; the applications can be heard sequentially; or the hearing of some of the applications might be adjourned pending the outcome in the others. In the event that the parties wish to have more than one application heard at the same time, they should be prepared to address issues relating to the order of presentation of evidence and who will be entitled to cross-examine witnesses.

7Should the parties be unable to conclude agreements on any of the matters listed in paragraphs 5 and 6 above, they may be directed to serve and file written submissions setting out their positions and the grounds for them by July 31, 1998. The Tribunal will resolve these matters on the basis of those written submissions in advance of the scheduled hearing dates.

8We appreciate that Mr. Winter's medical condition may preclude him from attending the Pre-Hearing, but are confident that someone from his office will be able to attend in his stead and contact him by telephone if necessary. The Pre-Hearing date of June 24, 1998, rather than June 22, 1998, as requested by Counsel for Caressant Care, has been selected to offer more time for Mr. Winter to brief his stand-in.

9SEIU and LDSWU requested that the Tribunal order the Applicants in Tribunal Files Nos. PE 0626-97; PE 0631-97; PE 0632-97; and PE 0633-97 to produce certain documents. These documents appear to us to be arguably relevant to the issues in theses proceedings, and we order their disclosure.