Pay Equity Hearings Tribunal
0666-98 Humber College of Applied Arts and Technology, Applicant
0669-98 Confederation College of Applied Arts and Technology, Applicant
Before: Heather M. MacNaughton, Chair, and Members Margaret Kvetan and Bruce Budd
Appearances: Anne E. Burke for the Applicant Humber College of Applied Arts and Technology; Allen V. Craig for the Applicant Confederation College of Applied Arts and Technology; Carrie Gallant for the Moving Party, the Pay Equity Office
Cite as: Humber/Confederation CAAT (No. 1) February 18, 1999
DECISION OF THE TRIBUNAL
The Applicant in file PE-0666-98, Humber College of Applied Arts and Technology ("Humber"), and the Applicant in file PE-0669-98, Confederation College of Applied Arts and Technology ("Confederation"), are both colleges of applied arts and technology and are public sector employers. They were required to prepare and post pay equity plans on January 1, 1990.
A Review Officer's Order was issued against Confederation on November 6, 1997 and against Humber on November 7, 1997. Both Orders were very similar, and required the Applicants to prepare, post and implement job-to-job pay equity plans effective January 1, 1990 and proportional value pay equity plans effective January 1, 1993. Humber applied to the Tribunal for an order revoking the Review Officer's Order on December 18, 1997 and Confederation made a similar application on March 11, 1998.
Neither Humber nor Confederation named a respondent in their respective Applications. The Pay Equity Office (“PEO”) was served with the Confederation Application only.
The primary focus of both Applications is a challenge to the jurisdiction of the Review Officer to investigate the Pay Equity plans of Humber and Confederation, and to issue orders pertaining to them, in the absence of a complaint to Review Services. The secondary focus of both Applications is to challenge the merits of the Review Officer’s Orders. The PEO has applied to the Tribunal for standing to participate as a party in both matters. Humber and Confederation oppose its motion. Alternatively, the PEO submits that it should be granted status as a non-party intervenor. Humber and Confederation do not oppose that submission.
The Arguments
- Section 32(1) of the Pay Equity Act, R.S.O. 1990, c. P. 7 as amended (the “Act”) enumerates the parties to a hearing before the Tribunal. They are as follows:
(a) the employer;
(b) the objector or complainant;
(c) the bargaining agent (if the pay equity plan relates to a bargaining unit) or the employees to whom the plan relates (if the plan does not relate to a bargaining unit); and
(d) any other persons entitled by law to be parties.
The Pay Equity Office (“PEO”) submits that it is entitled by law to be granted standing to participate as a party in both Applications and, therefore, falls within s. 32(1)(d) of the Act
The inclusion of s. 32(1)(d) in the Act confirmed the Tribunal’s authority to add parties to a proceeding before it. Prior to the 1993 amendments, the Tribunal relied on the Statutory Powers of Procedure Act R.S.O. 1990, c. S.22 as amended, to find its jurisdiction to name as parties to a proceeding persons who were not specifically enumerated in the Act. The language incorporated into the Act as a result of the 1993 amendments tracked the language in the Statutory Powers of Procedure Act.
In Wentworth County Board of Education, (1990) 1 P.E.R. 132, the Tribunal made the following comments about the nature and role of such parties in the pay equity proceeding and the Tribunal’s responsibility to ensure that they receive notice and are permitted to participate:
Those persons who are not expressly required by statute to be made parties, but who are nevertheless otherwise entitled by law to be parties in a proceeding must have a substantial and direct interest in the outcome of the case. These persons must be notified of the case and be permitted to participate in order to meet the requirements of natural justice. Such persons participate as of right in the proceedings; they may participate in all aspects of the case and are bound by the decision.
We are of the view that the principles enunciated in the Wentworth decision, followed in Mississauga Hydro Electric Commission (1992) 3 P.E.R. 28, remain appropriate to s. 32(1)(d) determinations because of the almost identical wording of the section to the Statutory Power Procedure Act provision.
The PEO submits that it has a substantial and direct legal interest in the outcome of the matters before us. They submit that the outcome of the Applications will affect other cases involving similar issues and their ability to issue orders in future cases in which there is no complaint to Review Services.
We agree that the PEO has a substantial interest in the broader policy outcome of this dispute, and the impact that our interpretation of the statute will have on their jurisdiction, authority, and practice. We are, therefore, prepared to allow them party status for the purposes of making submissions on the jurisdictional issue.
Dated at Toronto this 18th day of February, 1999:
Heather M. MacNaughton
Chair
Margaret Kvetan
Member
Bruce Budd
Member