Pay Equity Hearings Tribunal
PE-0606-96 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, Vice Chair, and Members Bruce Budd and Charles Taccone
Appearances: Senka Dukovich for the Group of Employees and Nancy Tallevi; Donna Reid and Jean Pedersen on their own behalf; Carole E. Hoglund for the Respondent
Cite as: Dufferin-Peel No. 2 (January 28, 1998) 0606-96; 0623-96; 0628-97; 0640-97; (P.E.H.T.)
DECISION OF THE TRIBUNAL, January 28, 1998
1The Anonymous Group of Employees, Nancy Tallevi and Jean Pedersen sought an order from the Tribunal for disclosure of documents that they alleged were relevant to the issues before us. They submitted that the disclosure sought was necessary for them to properly prepare for the cross examination of the Dufferin-Peel Roman Catholic Separate School Board witnesses and to assist their expert advisors.
2In response to the motion the Dufferin-Peel Roman Catholic Separate School Board raised an issue with respect to the timeliness of the requests for disclosure. Further, they argued that the requested documents were not relevant to the issues currently before the Tribunal, as those issues had been narrowed by the Prehearing Memorandum, and that certain of the disclosure requests amounted to a fishing expedition. As a separate issue the Dufferin-Peel Roman Catholic Separate School Board sought direction and clarification from the Tribunal regarding the order of proceeding at the hearing. The motion was argued by way of a conference call held on January 9, 1998.
THE DISCLOSURE MOTION
TIMELINESS
3On May 27, 1997 the parties attended a Pre-Hearing Conference at the Tribunal’s offices. They agreed that any party requesting disclosure would do so by August 8, 1997. It was not disputed that the first request for disclosure made by counsel for Nancy Tallevi and the Groups of Employees was on August 15, 1997. The request for disclosure made by Ms Pedersen was similarly after the date agreed to.
4The Tribunal is concerned about the timeliness of the disclosure requests that were made in this case. We urge counsel to abide by the agreements they reach at a prehearing. Failure to do so may result in the Tribunal refusing to grant interim orders to a non-complying party. However, we have concluded that in this case the one week delay, when weighed against the disruption in the hearing that might result from not dealing with these requests now, is minimal and ought not to preclude these parties from seeking disclosure.
SHOULD DISCLOSURE BE ORDERED?
5The jurisprudence of this Tribunal has established that the test to be applied on a motion for disclosure is whether the document that is sought is arguably relevant to the issues in dispute between the parties. Kingston and Frontenac Children’s Aid Society (1990), 2 P.E.R. 310, Windsor (Huron Lodge) (1995) 6 P.E.R. 223.
6The parameters of what is arguably relevant are defined by the pleadings and, where as in this case the parties have executed a Prehearing Memorandum of Agreement, the issues the parties have defined as outstanding between them by agreement. Further, the panel may form a view as to the arguable relevance of a particular document as the hearing proceeds and the case evolves. An order that a document be disclosed during the disclosure process is not however, an order that the document is necessarily admissible at the hearing. The very fact of disclosure may resolve issues otherwise thought to be outstanding hence it is expected that much of what is ordered disclosed will not subsequently be put in evidence before the panel.
7We find that certain of the documents sought by Ms Pedersen and by counsel on behalf of the Group of Employees and Nancy Tallevi are arguably relevant and should be disclosed. We therefore order that the Dufferin-Peel Roman Catholic Separate School Board provide to the other parties the following documents:
∙ All notes, minutes, reports or other documents prepared or reviewed by the Job Evaluation Committee the Pay Equity Committee, the pay equity consultants, or the Employer’s Pay Equity Officer which related to the work of the committees in rating the non-union positions in the workplace. In particular, without limiting the generality of the foregoing, the notes to raters, the factor definitions and notes, minutes, reports or other documents which were considered when dealing with ratings changes.
∙ The Questionnaire responses, for both the incumbents and their supervisors for all of the job classes in dispute.
∙ The job descriptions and completed questionnaires for all the incumbents and supervisors in all the levels between, and including, the Plant Projects coordinator and the Supervisor of Payroll. If not otherwise included this disclosure is to include the Coordinator of Software, the Executive Assistant1 and Equal Opportunity Officers positions.
∙ To the extent that they exist, any working copies of the questionnaires which may have been altered by the Pay Equity Committee while rating the job classes in the job levels requested.
THE ORDER OF PROCEEDING
8The Dufferin-Peel Roman Catholic Separate School Board sought clarification from the panel with respect to its ruling regarding the order of proceeding made on November 12, 1997. The panel advised the parties on the conference call that the Dufferin-Peel Roman Catholic Separate School Board will lead its case first with respect to the appeal of the Review Officer’s order. We would expect that during that case detailed evidence would be led with respect to the ratings process employed by the committee. However, we expect that evidence to be limited to the factors and ratings agreed to be in dispute in the Prehearing Memorandum of Agreement. The employees will then respond and the Dufferin-Peel Roman Catholic Separate School Board will have a full right of reply to any issues raised first by the employees in their evidence.
Dated at Toronto this 27th day of January, 1998:
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Heather McNaughton, Vice-Chair
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Bruce Budd, Member
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Charles Taccone, Member