PAY EQUITY HEARINGS TRIBUNAL

PE 0650-97 Pay Equity Office, Applicant v. GL&V Process Equipment Group Inc. and Group of Employees, Respondents

PE 0667-98 GL&V Process Equipment Group Inc., Applicant v. Pay Equity Office, Group of Employees and Mary O’Connell, Respondents

PE 0671-98 GL&V Process Equipment Group Inc., Applicant v. Pay Equity Office, Group of Employees and Mary O’Connell, Respondents

Before: Mary Anne McKellar, Vice-Chair, and Members Bruce Budd and Margaret Kvetan.

Appearances: Carrie Gallant for the Applicant, Pay Equity Office; Carolyn Kay-Aggio for the Respondent, GL&V Process Equipment Group Inc.; and Mary O’Connell for herself and the Respondent, Group of Employees

Cite as: GL&V Process Equipment (4 February 1999) 0650-97, 0667-98 and 0671-98 (P.E.H.T.)

DECISION OF THE TRIBUNAL, FEBRUARY 4, 1999

INTRODUCTION

1. In Application 0650-97, the Pay Equity Office (the “PEO”) seeks to have the Tribunal order GL&V process Equipment Inc. (“the Employer”) to comply with a Review Officer Order dated November 14, 1996 (“the Order”).

2. In Applications 0667-98 and 0671-98, the Employer objects to the Order.

3. Two other related Applications, 0649-97 and 0668-97 were withdrawn.

4. By Notice of Motion, the PEO sought early dismissal of the Applications 0667-98 and 0671-98. The Motion was heard on September 2, 1998.

5. At the conclusion of the hearing on September 2, 1998, the Tribunal issued the following oral ruling:

The motions are dismissed. Our reasons will follow. The Deputy Registrar will contact you regarding the scheduling of hearing dates, unless the parties indicated that they wish to attend a further pre-hearing conference.

On September 3, 1998, the PEO wrote to the Tribunal, advising that the parties were in agreement that a pre-hearing conference should be scheduled in respect of the three remaining Applications. That pre-hearing conference is scheduled for February 4, 1999.

6. Our reasons for denying the PEO’s request for early dismissal of Applications Nos. 0667-97 and 0671-98 are set out below.

THE BACKGROUND

7. Of the Applications with which we are concerned in this decision, only 0650-97 had been filed as of January 30, 1998. On that date, the Tribunal convened a hearing by conference call to deal with that file, as well as another PEO application seeking to enforce a Review Officer’s Order (0649-97, since withdrawn). A decision issued as a result of that hearing: GL&V Process Equipment (30 January 1998) 0649-97 and 0650-97 (P.E.H.T.). Paragraphs 5 through 7 of that decision usefully set out the background to the instant proceedings:

8. The Employer’s Responses [to the PEO applications] indicate some dissatisfaction with the merits of the Orders. Nevertheless, the Employer has taken no steps to file its own applications objecting to them, notwithstanding that the Orders were issued over a year ago; the Applications were made on July 3, 1997; and a Pre-Hearing Conference was convened in the meantime. During the course of the conference call, counsel for the Pay Equity Office indicated that Mr. Tessier [the Employer’s representative] had been clearly informed on two separate occasions of the necessity of filing his own application, and he did not dispute this assertion, nor did he dispute that the draft pre-hearing memorandum, agreed to by all the parties, but not executed by him, dealt with this issue.

9. Having regard to the considerable period of time during which the merits of the Orders might have been placed in issue by the Employer, we set a peremptory date for hearing the compliance Applications. That hearing will convene at 9:30 a.m., March 12, 1998 in the Tribunals’ Office 2nd Floor Hearing Rooms at 150 Eglinton Ave. East, Toronto.

10. If the Employer wishes to object to the merits of the Orders, it must do so by serving and filing a written application no later than 5:00 p.m., February 20, 1998. In the event that any such applications are filed, the March 12, 1998 hearing date will be converted to a pre-hearing at the same venue. The Employer has been advised that this direction permitting it a period of time in which to contest the merits of the Orders by its own application constitutes no assurance that any such application will be heard on the merits by the Tribunal, and that the Pay Equity Office may seek early dismissal of it.

11. GL&V filed its Application 0667-98 and 0668-98, but it was not apparent that these applications had been served upon the named respondents. Application 0668-98 has since been withdrawn. Upon review of these applications, the Tribunal issued the following directions on March 5, 1998:

March 12, 1998 will be held as a hearing day, and not as a pre-hearing. The parties will be expected to attend, prepared to address the following issues:

(1) Whether the Applications in PE-0667-98 and PE-0668-98 have been served and filed in a timely fashion in accordance with Paragraph 7 of the Tribunal’s Decision dated January 30, 1998;

(2) Whether the Applications in PE-0667-98 and PE-0668-98 are timely in any event, having regard to the provisions of the Pay Equity Act and the circumstances chronicled in Paragraph 5 of the Tribunal’s Decision dated January 30, 1998;

(3) Whether the Applications in PE 0667-98 and PE-0668-98 should be dismissed for failure to state a prima facie case. In this regard, the parties are invited to refer to [a list of Tribunal decisions with citations, copies of which were enclosed for those parties without counsel];

(4) Whether GL&V Process Equipment Inc., has failed to comply with the Review Officer Orders dated November 14, 1996, such that the Applications in Tribunal Files Nos. PE 0649-97 and PE-0650-97 should succeed and the Tribunal should order compliance.

9. By letter dated March 9, 1998, the Employer requested an adjournment of the March 12, 1998 hearing on the grounds that “Mr. Mark Tessier who was dealing with this matter is no longer employed by GL&V and we require some time to familiarize ourselves with the issue”. In the absence of any objection from the other parties, the adjournment was granted.

10. During the course of March 1998, the parties settled the matters at issue in related Application 0649-97, and that Application was withdrawn on April 1, 1998. The Employer’s Application 0668-98, dealing with the same issues was also subsequently withdrawn. At this point, there were two remaining Applications before the Tribunal, 0650-97 and 0667-98, both relating to the Order, and in particular to its directions respecting retroactive pay for female job classes.

11. A Pre-Hearing Conference before the Chair of the tribunals was convened by conference call on April 23, 1998. Mr. Bart Yule represented the Employer. Some of the matters discussed at the conference call are referred to in letters dated April 23, 1998 and June 10, 1998 from counsel for the PEO to Mr. Yule. They appear to relate to the gender incumbency of certain job classes, an issue which had not been raised in any of the applications filed to that point. The June 10 letter contains the following paragraph:

Since GL&V’s position on both these job classes is contrary to the review officer’s order … it would require the order to be revoked or amended, something which the Pay Equity Office cannot do. As discussed during the Pre-Hearing Conference call of 23 April 1998, if GL&V wishes to object to the review officer’s order and seek to have it changed to reflect the GL&V’s position, it must file its own application for hearing to the Pay Equity Hearings Tribunal.

12. By letter dated June 10, 1998, the Tribunals’ Office notified the parties “that a conference call to set hearing dates in this matter is now scheduled for June 17, 1998 at 9:30 a.m.” During that conference call the hearing was scheduled for September 2 and 3, 1998.

13. By letter dated July 3, 1998, present counsel for the Employer wrote to advise the Tribunal of her recent retainer. She requested an adjournment of the hearing dates, and referred in the course of her letter to the issue of the gender incumbency of certain job classes:

It further appears, through the exchange of correspondence with the Commission, that the employer has taken issue with respect to a number of aspects of the Review Officer’s Order, particularly the gender dominance of specific job classes. No application, however, was ever filed with respect to those issues. Unless we can be assured that the Tribunal will nonetheless assume jurisdiction to deal with those issues, we will be preparing an Application on the employer’s behalf setting out the grounds on which it objects to the Order.

On July 23, 1998, the Employer filed Application 0671-98, in which it raised issues respecting the gender incumbency of certain job classes.

14. On July 13, 1998, the PEO wrote to the Tribunal, opposing the Employer’s request to adjourn the hearings scheduled for September 2 and 3, 1998. On August 13, 1998, it filed its motion materials requesting the early dismissal of Applications 0667-98 and 0671-98.

15. By letter dated August 18, 1998, the Tribunal advised the parties as follows:

The Tribunal refuses to grant the requested adjournment and will entertain the Pay Equity Office’s motions on the scheduled days. No hearing on the merits will commence on either September 2 or 3, 1998.

THE EVIDENCE AND THE SUBMISSIONS

16. The PEO called no viva voce testimony in support of its motion. At the outset of her submissions, counsel stated that she was seeking early dismissal of the Employer’s two applications on the grounds of delay and abuse of process.

17. In her submissions, counsel outlined the approach the PEO takes once one of its officers has issued an order. The practice of the PEO is to monitor compliance and to offer parties a fair bit of time to comply, even if that means granting extensions to the time limits specified in the orders. In this case, documentary evidence established that the PEO wrote to the Employer on three separate occasions in early 1997 with respect to the obtaining compliance with the Order. Two of these letters contained specific reference to the procedure for objecting to Orders by making application to the Tribunal. When no applications were filed and the Order was not complied with, the PEO made its referral application on July 3, 1997.

18. The PEO acknowledged that the Pay Equity Act does not specify time frames in which objections to orders must be made. It argued, however, that the panel had set time frames in its decision of January 30, 1998, and the Employer’s failure to comply with that direction amounted to an abuse of process. The Application in 0671-98 was made some months after the expiry of the February 20, 1998 deadline set by the Tribunal. In support of the proposition that Tribunal orders are to be taken seriously, it pointed to the fact that the failure to implement such an order may lead to the granting of consent to prosecute the non-compliance as a provincial offence.

19. With respect to the Employer’s Application 0667-98, the PEO’s argument was that it should be dismissed as the issue was largely moot, since the retroactive pay owing pursuant to the Order had been paid to all of the female job classes with the exception of those whose gender predominance was being disputed in 0671-98.

20. The Employer called one witness, Mr. Bart Yule, the Vice-President and General Manager of the Employer’s operations in Orillia, Ontario, the workplace affected by the Order. Yule testified that Mark Tessier, the Employer’s former manager of human resources, had been responsible for all employee relations matters. In particular, Yule testified that Tessier was given carte blanche to “sort out pay equity”. Tessier’s efforts in this regard were not monitored on an ongoing basis. In March, 1998, Tessier was dismissed for incompetence. Upon Tessier’s dismissal, Yule obtained his pay equity files and attempted to figure out what was going on. Several large green binders comprised the files. These binders were supposed to contain all of the documentation pertaining to the Employer’s pay equity obligations, but Yule subsequently discovered that they were incomplete. The documents that did exist, some of which were filed as part of the motion materials before us, indicated clearly that Tessier completely failed to grasp how the pay equity process worked or what was at stake, notwithstanding the PEO and the Tribunal’s repeated efforts to explain these matters.

21. Although the Tribunal decision of January 30, 1998 was contained in the binders, Yule did not see it until, July, 1998 when he retained the Employer’s present counsel. More significantly, he testified that he was certainly never aware prior to its expiry on February 20, 1998, that the Tribunal had set a deadline for the Employer to make objection to the Order. In any event, according to Yule, once he became involved in the file, the focus turned to attempting to resolve the matter without the need for litigation. In the course of efforts to comply with the Order respecting retroactive pay, an issue arose as to the gender incumbency of certain jobs. Although this issued and not been flagged in 0667-98, the matter was canvassed at the Pre-Hearing convened to deal with that file, and Yule followed up the very next day by sending the PEO job class incumbency information. Yule thought that as a result of the Pre-Hearing Conference all of the Employer’s pay equity issues were neatly settled.

22. When the PEO replied to Yule’s April 24, 1998 letter on June 10, 1998 (excerpted above in Paragraph 11), he still thought a negotiated resolution was being pursued. Consequently, he was “flabbergasted” on June 10, 1998 to also receive a notice of conference call to set hearing dates. When the conference call was convened on June 17, 1998, he indicated his intention to retain counsel.

23. Counsel for the Employer submitted that the PEO’s motion should be denied for three reasons: The Employer had proffered a reasonable explanation for the delay; there was a legitimate issue to be tried; and there was no evidence of prejudice to the other parties.

THE ANALYSIS

24. The Employer had a right to object to the Order. The Act places no time limits on the exercise of that right. The Tribunal’s January 30, 1998 decision did impose a time limit. The Application in 0667-98 was filed in accordance with that time limit, although it was not clear that it had been served on the PEO in a timely fashion. The Application in 0671-98 was filed some four months after the expiry of that deadline.

25. The PEO did not argue that Application 0667-98 was untimely, but rather that it was moot, and should be dismissed for that reason. The Employer acknowledged that it had largely complied with the Order at issue in that Application. If that were a rationale for early dismissal of the Application, however, surely it would be an even more compelling rationale for the dismissal of an application seeking to enforce compliance with the Order, the PEO’s Application 0650-97. The PEO did not offer to withdraw 0650-97. As long as it remains outstanding and the parties acknowledge that the Order has not been fully implemented, it cannot be said that 0667-98, objecting to the Order, is moot. It may well be that the Employer will abandon the grounds of objection set out in 0667-98 and rely instead on those contained in 0671-98. If that is in fact the case, now that we have refused early dismissal of 0671-98, we would encourage the Employer to withdraw 0667-98.

26. Application 0671-98 was not made within the time limits specified by the Tribunal in its decision of January 30, 1998. In the context of all the proceedings relating to these matters, the PEO argues that that delay amounts to an abuse of process. Certainly it is true that the resolution of these matters since the date of the Order (November 14, 1996) has been painstakingly slow. It is also true that much of the responsibility for that tardiness is attributable to the Employer, particularly while represented by Tessier. Whether the Employer’s conduct warrants the discontinuance of 0671-98 must be examined in the context of what “abuse of process” means.

27. The Tribunal has dealt with motions for early dismissal on the basis of abuse of process on at least two occasions: Maclean’s Magazine (No. 2) (1993), 4 P.E.R. 45; and Peterborough (14 January 1992) 0254-91 (P.E.H.T.). Both those cases raised the issue of the Tribunal’s jurisdiction to dismiss an application, but that question was not addressed in the decisions. No jurisdictional arguments were raised before us.

28. In Peterborough, the Tribunal heard the jurisdictional argument one day and reserved on it. In anticipation of the next day of hearing, the Tribunal wrote, at Paragraphs 3 and 4:

29. On the next day of hearing we expect the Respondent to lead its evidence of the alleged abuse of process. We would like to provide the parties with some guidance as to what evidence is relevant. In order to make out an allegation of abuse of the Tribunal’s processes, a party must show that the Tribunal’s processes are being used as a vehicle to promote oppression or harassment of another party. It is not enough to show merely that a party is being oppressed or harassed by the other because that, in itself, is not an abuse of the Tribunal’s processes. Therefore, evidence of oppression or harassment that is not somehow linked to the Tribunal’s processes is not relevant.

30. As we have said above, if the Tribunal has the jurisdiction to entertain a request that an application be dismissed because it is an abuse of process, the process that the Tribunal is concerned with protecting is its own process. If a party alleges that there has been an abuse of the pay equity bargaining process, then it may make a complaint pursuant to section 14 of the Pay Equity Act … The Respondent cannot seek to remedy what should properly be an alleged breach of its substantive right to good faith bargaining by seeking to have the application dismissed because it is an abuse of the Tribunal’s process.

31. In Maclean’s Magazine, the Tribunal quoted with approval the Peterborough decision’s conceptualization of “abuse of process”. It went on to find that the actions of the employer in that case did not amount to an abuse of process:

32. The evidence of this case falls far short of meeting this test. The gender dominance of the job classes is a legitimate disputed between the parties and the Union has not established that the application with respect to the first order is an inappropriate use of the Tribunal’s processes with the intent to harass or oppress the Union.

33. We do not find that the Employer has engaged in delay to such an extent that the Tribunal would dismiss its application with respect to the first order. The evidence shows that up to the issuing of the first order, the parties engaged in meaningful bargaining toward a pay equity plan, with regular meetings and substantial progress. From February 1991, to February 1992, again, the parties engaged in meaningful bargaining. With the exception of the Employer’s announcement at the February 1992 meeting of its plans to appeal the first order, the negotiations after February, 1992 were also meaningful. The parties, with the assistance of the Review Officer attempted to continue their negotiations as far as possible, before advising the Review Officer of the outstanding issues in June of 1992. The Review Officer issued her second order in November 1992 and the Employer filed its application with respect to both orders in December 1992. There was some dispute about whether the Employer made statements that it would delay the process. We do not find it necessary to determine if those statements were made and if so in what context, because the Employer’s actions do not indicate an intention to delay. As we have set out in the chronology of events, the parties continued to meet and to move forward on issues.

34. The propositions that emerge from the above cases are:

• the alleged abuse of process must relate to an abuse of process before the Tribunal;

• delay in filing an application will not necessarily constitute an abuse of process where the parties have been engaged in meaningful negotiation;

• in determining whether an application in abusive, the Tribunal may have regard to the legitimacy of the issue to be resolved.

31. Applying those propositions to the facts of this case, we cannot conclude that the Employer’s actions have been abusive of the Tribunal’s own processes. The Tribunal became involved with this matter when the PEO filed its Application on July 3, 1997. None of what happened prior to that date has any impact on the Tribunal’s processes; at best they may be regarded as oppressive actions as between the parties. Once the PEO’s Application was filed, a Pre-Hearing Conference was scheduled and convened via conference call. Tessier participated in it for the Employer. A Pre-Hearing Memorandum was drafted to reflect the matters the parties had agreed to during the call. Tessier did not execute it. In the absence of either a Pre-Hearing Memorandum or any Employer applications objecting to the Order, a conference call hearing before this panel was convened on January 30, 1998. Tessier participated in it. The Janauary 30, 1998 decision issued. It contained certain directions. Tessier purported to comply with them by filing 0667-98 on February 19, 1998. The issue of whether his actions actually constituted compliance with those directions was scheduled for hearing on March 12, 1998. That issue was never resolved because Tessier was dismissed and the hearing was adjourned.

32. After Tessier was dismissed, the parties explored settling the outstanding issues between them. By late March or early April, the outstanding issues were known to include the gender dominance of certain job classes. Although negotiations included that issue, the PEO now says it is untimely to bring it before the Tribunal, even though the PEO, during the course of negotiations, invited the Employer to make objection to the Tribunal. Not only that, but the Tribunal itself convened a Pre-Hearing Conference at which the gender dominance issue was discussed. Once it was clear that the matter was going to hearing, the Employer retained counsel and the Application in 0671-98 followed quite promptly. As did the Maclean’s panel, we find that the parties’ participation in negotiations provides a reasonable explanation for the delay from February to July, and renders it not abusive of the Tribunal’s process.

33. As did the Maclean’s panel, we find that the gender dominance of job classes is a legitimate issue.

34. Neither the decision in Peterborough nor in Maclean’s adverts to the significance of prejudice in an abuse of process motion. In our view, no motion for discontinuance based on abuse of process can succeed in the absence of a finding that the moving party has suffered some actual prejudice as a result of the allegedly abusive conduct of the applicant. The moving party must lead evidence of actual prejudice. The PEO led no such evidence in this case, nor indeed did it argue that it had been prejudiced.

Dated at Toronto this 4th day of February,1999:

“Mary Anne McKellar”

Mary Anne McKellar, Vice-Chair

“Margaret Kvetan”

Margaret Kvetan, Member

“Bruce Budd”

Bruce Budd, Member