PAY EQUITY HEARINGS TRIBUNAL
0666-98 Humber College of Applied Arts and Technology, Applicant
Before: Heather MacNaughton, Chair, and Members Pauline R. Seville and Margaret Kvetan
Cite as: Humber CAAT (No. 4) (June 20, 2000) 0666-98 (P.E.H.T.)
Appearances: Ann Burke for the Applicant and Colleen Montgomery for the Pay Equity Office.
THE MOTION
This motion was brought by the Applicant, Humber College of Applied Arts and Technology (“Humber”). Humber seeks to have the Tribunal revoke a Review Officer's Order dated February 4, 1998. The Order concerns the pay equity plan for Humber’s Management and Excluded employees (the "Plan"). Counsel for Humber submits that the Review Officer lacked jurisdiction to issue the Order because no objection or complaint had been filed with respect to the Plan. Humber filed an Application with the Tribunal in which it raised the jurisdictional issue and sought a revocation of the Order. Humber did not name a respondent to its Application and, despite broad notice to all potentially affected employees, no responses have been filed to Humber's Application.
By Interim Decision dated February 18, 1999, we granted the Pay Equity Office standing to make submissions on this jurisdictional issue only.
THE FACTS
For the purposes of this motion, the facts are not in dispute. On January 10, 1990, Humber posted the Plan. Humber received no comments with respect to the Plan within the 90 day employee review period contemplated in s. 15(4) of the Pay Equity Act R.S.O. 1990 c. P.7 as amended (the "Act"). Further, no notices of objection within the 30 days contemplated under s. 15(7) were ever filed with the Pay Equity Office with respect to the Plan. Consequently, by operation of s.15 (8) of the Act, the Plan was deemed approved. No complaints under s. 22 of the Act were ever received with respect to the Plan.
Humber completed all of the adjustments required under the Plan by November 1, 1991. On February 4, 1998 the Review Officer issued an Order under s. 24(1) and (3) of the Act, requiring Humber to amend and repost the Plan. Apparently, the Review Officer had learned of problems in the Plan while investigating a complaint arising at another community college where a plan was posted after using a similar system and process to that used by Humber.
For the purpose of understanding the submissions and analysis that follows we propose to set out the key sections of the Act on which the parties relied, and which will inform our analysis:
(1) Investigation by review officer and settlement. If the Commission,
(a) is advised by an employer or a bargaining agent that no agreement has been reached on a pay equity plan or an amendment to a pay equity plan; or
(b) receives a notice of objection to a pay equity plan for employees to an amendement of such a plan,
a review officer shall investigate the matter and endeavour to effect a settlement. R.S.O. 1990, c.P.7, s.16(1); 1993.4, s.11.
(2) Orders by review officer. If the review officer is unable to effect a settlement as provided for in subsection (1), he or she shall by order decide all outstanding matters.
ENFORCEMENT
- (1) Complaints. Any employer, employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining that there has been a contravention of this Act, the regulations or an order of the Commission.
(2) Idem. Any employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining with respect to a pay equity plan that applies to the employee or group of employees that,
(a) the plan is not being implemented according to its terms; or
(b) because of changed circumstances in the establishment, the plan is not
appropriate for the female job class to which the employee or group of
employees belongs.
- (1) Investigation of complaints. Subject to subsection (2), when the Commission receives a complaint, a review officer shall investigate the complaint and may endeavour to effect a settlement.
(2) Idem. The review officer shall notify the parties and the Hearings Tribunal as soon as he or she decides that a settlement cannot be effected and that he or she will not be making an order under subsection 24 (3).
(3) Decision to not deal with complaint. A review officer may decide that a complaint should not be considered if the review officer is of the opinion that,
(a) the subject-matter of the complaint is trivial, frivolous, vexatious or
made in bad faith; or
(b) the complaint is not within the jurisdiction of the Commission.
(4) Hearing before Tribunal. The review officer shall notify the complainant of his or her decision under subsection (3) and the complainant may request a hearing before the Hearings Tribunal with respect to the decision. R.S.O. 1990, c. P.7, s. 23.
- (1) Orders by review officers. Where a review officer is of the opinion that a pay equity plan is not being prepared as required by Part II, III.1 or III.2, the review officer may order the employer and the bargaining agent, if any, to take such steps as are set out in the order to prepare the plan. R.S.O. 1990, c. P.7, s. 24 (1); 1993, c. 4, s. 14 (1).
(2) Idem. Where a review officer is of the opinion that a pay equity plan is not being implemented according to its terms, the review officer may order the employer to take such steps as are set out in the order to implement the plan. R.S.O. 1990, c. P.7, s. 24 (2).
(2.1) Same. If a review officer is of the opinion that because of changed circumstances a pay equity plan is no longer appropriate, the officer may order the employer to amend the plan in such manner as is set out in the order or to take such steps with a view to amending the plan as are set out in the order. 1993, c. 4, s. 14 (2).
(3) Same. If a review officer is of the opinion that there has been a contravention of this Act by an employer, employee or bargaining agent, the officer may order the employer, employee or bargaining agent to take such steps to comply with the Act as are set out in the order. 1993, c. 4, s. 14 (3).
(6) Hearing before Tribunal. An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to the order, and, where the order was made following a complaint but the complaint has not been settled, the complainant may also request a hearing. R.S.O. 1990, c. P.7, s. 24 (6).
33 (1) Pay Equity Office. The Pay Equity Office is responsible for the enforcement of
this Act. R.S.O. 1990, c.P.7, s.33(1); 1993, c.4, s.20(1).
- (1) Review officers, designation. The head of the Pay Equity Office shall designate
one or more employees of the Office to be review officers.
(2) Review officers, duties. Review officers shall monitor the preparation and
implementation of pay equity plans, shall investigate objections and complaints filed with
the Commission, may attempt to effect settlements and shall take such other action as is set
out in this Act or in an order of the Hearings Tribunal.
(3) Powers. A review officer, for the purpose of carrying out his or her duties,
(a) may enter any place at any reasonable time;
(b) may request the production for inspection of documents or things that may be
relevant to the carrying out of the duties;
(c) upon giving a receipt therefor, may remove from a place documents or things
produced pursuant to a request under clause (b) for the purpose of making
copies or extracts and shall promptly return them to the person who produced
them;
(d) may question a person on matters that are or may be relevant to the carrying
out of the duties subject to the person's right to have counsel or some other
representative present during the examination; and
(e) may provide in an order made under subsection 16(2) or 24(1) that any job class is a female job class or a male job class.
THE SUBMISSIONS
- Both Counsel for Humber and Counsel for the Pay Equity Office agree that the Act is remedial legislation intended to redress gender discrimination in compensation for work performed by female job classes. Further, both agree that, as such, the Act is human rights legislation and should be given a broad and purposive interpretation that best ensures the attainment of the objectives of the Act.
Humber's Submissions
Counsel for Humber, however, submits that the Plan was deemed approved by operation of the Act. Counsel for Humber relies on the fact that all adjustments required under the Plan were completed by November 1, 1991 and that pay equity was achieved at that time. In these circumstances, she says, the Act and earlier Tribunal jurisprudence should lead us to conclude that Review Officers have no jurisdiction to issue an order in respect of the Plan. Further, Counsel urges us to give effect to the deemed approval provisions of the Act to ensure that workplace parties have the necessary certainty and finality when no objections or complaints are filed with the Commission with respect to a plan. The legislative drafters, she submits, preferred deemed approval, to pre-approval of plans by the Commission. This preference is, she says, in accordance with the self-managed process contemplated by the Act. Counsel further submits that, if Review Services can, in the absence of a complaint or objection, and after a plan is deemed approved and all resulting adjustments paid, issue an order requiring that a plan be amended and reposted, the deemed approval provisions in the Act will be rendered meaningless and effectively read out of the Act.
Alternatively, Counsel for Humber submits that the Part IV enforcement provisions of the Act, when looked at as a whole, contemplate a complaint-driven process (s. 22), which will lead to an investigation (s. 23), and, subsequently, an order (s. 24). She submits that this is a complete enforcement code and that, without a complaint, the Pay Equity Office has no separate or other jurisdiction, to issue an order.
She directed us to the obligations of an employer to achieve pay equity in an establishment in which there is no bargaining agent. The Act sets out a series of steps required of the employer and gives opportunities for affected employees to comment or object to the plan. The process is self-managed unless and until an objection is filed. Then, pursuant to s. 16, if the Pay Equity Commission is advised of an objection, a Review Officer has a statutory obligation to investigate the matter and endeavour to effect a settlement. If no settlement is achieved, a Review Officer has a statutory obligation to order all outstanding matters. Once that process has concluded, the employer or an employee who is affected by the order can bring the matter to this Tribunal pursuant to s. 22.
Pay Equity Office Submissions
Counsel for the Pay Equity Office submits that s.33 of the Act imposes on the Pay Equity Office a statutory obligation to enforce the Act. Further, she submits, s.34 requires Review Officers to monitor the preparation and implementation of pay equity plans as a separate and distinct obligation from their obligation to investigate objections and complaints filed with the Commission. In furtherance of that duty, the Act provides for extensive powers of entry, production, search and seizure.
If, she submits, in the course of their monitoring obligation, Review Officers learn of a violation of the Act, they have the authority to issue an order. Counsel submits that this authority can be exercised in the absence of a complaint or objection.
Counsel for the Pay Equity Office also submits that the ordering powers in s.24 do not track the complaint wording of s.22. Hence, it is reasonable to conclude that s.24 is intended to give order-making power in much broader circumstances than those contemplated by the complaints filed under s.22. In particular, she directs us to the wording of s. 24(6) which, she submits, inherently contemplates the request for a hearing before the Pay Equity Hearings Tribunal in response to an order made in the absence of a complaint.
ANALYSIS
The Act is a complicated piece of legislation which purports to set out a complete code by which workplace parties - employers, bargaining agents, where they exist, and employees - will achieve and maintain pay equity in their workplaces. The Act contemplates a self-managed process which may, or may not, require the involvement of the Pay Equity Commission to resolve disputes. While it is perhaps unfortunate that all of the powers and duties of Review Officers are not contained in one part of the Act and called "enforcement", the Act must be read in its entirety and with its broad systemic remedial purpose in mind. In our view it is not necessary to contrast the wording of the Act to other employment and labour statutes for assistance. We would only have been required to do so if there was ambiguity in the wording of the Act and we were seeking guidance as to the Legislature's intent from the wording used in other remedial statutes in the labour and human rights fields.
Having considered the submissions of Counsel for both of the parties and having reviewed the relevant sections of the Act (all of which are set out above) in light of its acknowledged remedial purpose and its status as fundamental human rights legislation, we have concluded that the Review Officer acted within his jurisdiction when issuing the Order in this case. We propose to outline the various sections of the Act that have led us to this conclusion.
The duties and powers of Review Officers are found in a number of different sections in the Act and come under different headings. In Part V of the Act, entitled “Administration”, and in particular in s.33, the Pay Equity Commission is given responsibility for enforcement of the Act. Section 34 imposes on Review Officers (employees of the Commission), a statutory obligation to monitor the preparation and implementation of pay equity plans. This duty is separate and, based on the wording of the section, in addition to their obligation to investigate objections and complaints. Section 34(3) accords Review Officers broad powers of investigation in order to fulfill their mandate.
This separate monitoring duty, in and of itself, is not conclusive of the issue before us as it is possible to conclude that, while Review Officers are able to perform this monitoring function, it does not have a companion order-making power.
In Part II, entitled “Implementation: Public Sector and Large Private Sector Employers”, a Review Officer is required to investigate objections to a plan or advice that no agreement has been reached with respect to a pay equity plan (or an amendment to it). On receipt of such an objection or advice, the Review Officer is to endeavour to effect a settlement, failing which he or she must, by order, decide all outstanding matters. It is clear from the wording of these sections that the orders contemplated in s.16(2), follow either a notice of "objection" to the plan from employees not represented by a bargaining agent or "advice" that no agreement could be reached with respect to a bargaining unit plan. The Review Officer's jurisdiction in this section is not expressly premised on receipt of a complaint.
In contrast, under s. 22(1) in Part IV of the Act, entitled “Enforcement”, an employer, employee, group of employees, or the bargaining agent, if any, may file a "complaint" with the Commission alleging that there has been a contravention of the Act. Further, with the exception of the employer, any one of them may file a complaint under s.22(2) that a plan is not being implemented in accordance with its terms, or is no longer appropriate for the female job class to which the employee or group of employees belongs.
Pursuant to s. 23, upon receipt of a complaint by the Commission, a Review Officer must investigate the complaint and may endeavour to effect settlement of it. It is significant that this section, which deals specifically with investigations, refers to the receipt by the Commission of a complaint. However, in s.24, which is headed “Orders by Review Officers”, the Act does not specifically refer to the receipt and investigation of a complaint leading to an order; rather it uses the wording “Where a review officer is of the opinion that…”. If the orders contemplated by s.24 all specifically referred to the types of complaints that could be filed under s.22, the submission of Counsel for Humber that these sections were intended to be a complete code in which a complaint leads to an investigation and ultimately to an order would be more persuasive.
A detailed review of the sections, however, indicates that s.24(1) contemplates an order being issued where a Review Officer is "of the opinion that a pay equity plan is not being prepared as required by Part II, III.1 or III.2 of the Act", circumstances which are not specifically referred to in the list of complaints that may be filed under s.22. Hence, while most complaints arising pursuant to the various subsections of s.22 can be linked directly to a specific order-making power, these sections do not form a complete list of all the order-making powers of Review Officers. This difficulty is perhaps best illustrated by the following chart, highlighted for emphasis:
Complaint
Order
s.22(1) Any employer, employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining that there has been a contravention of this Act, the regulations or an order of the Commission.
s.24(3) If a review officer is of the opinion that there has been a contravention of this Act by an employer, employee or bargaining agent, the officer may order the employer, employee or bargaining agent to take such steps to comply with the Act as are set out in the order.
s.22(2)(a) Any employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining with respect to a pay equity plan that applies to the employee or group of employees that the plan is not being implemented according to its terms.
s. 24(2.1) Where a review officer is of the opinion that a pay equity plan is not being implemented according to its terms, the review officer may order the employer to take such steps as are set out in the order to implement the plan.
s.22(2)(b) Any employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining with respect to a pay equity plan that because of changed circumstances in the establishment, the plan is not appropriate for the female job class to which the employee or group of employees belongs.
s.24(2.1) If a review officer is of the opinion that because of changed circumstances a pay equity plan is no longer appropriate, the officer may order the employer to amend the plan in such manner as is set out in the order or to take such steps with a view to amending the plan as are set out in the order.
s.24(1) Where a review officer is of the opinion that a pay equity plan is not being prepared as required by Part II, III.1 or III.2, the review officer may order the employer and the bargaining agent, if any, to take such steps as are set out in the order to prepare the plan.
Undoubtedly, one of the ways a Review Officer can form an opinion that a plan is not being prepared as required by Part II, III.I or III.2 of the Act, is not being implemented according to its terms, or, because of changed circumstances, is no longer appropriate, is by receipt of a complaint from an employer, employee, or a group of employees and the subsequent investigation of it.
However, s. 24, which grants Review Officers the power to order on forming such an opinion, is not, by its wording, specifically tied to either the receipt of a complaint nor the completion of an investigation contemplated by the two preceding sections. It does not, for example, say "upon receipt of a complaint and after conclusion of the investigation if a review officer is of the opinion that…". Arguably, it is open to the Review Officer to form an opinion as to a difficulty with the plan in other circumstances.
In addition, s.24(1) contemplates that a Review Officer can issue an order compelling the employer and the bargaining agent, if any, to take steps to prepare a pay equity plan where he or she is of the opinion that the plan is not being prepared as required by Part II, III.1 or III.2. This order-making power does not flow from a specific ground of complaint set out in s.22. Further, the wording of s.24(6) inherently contemplates that there may be orders following a complaint and otherwise:
24.(6) Hearing before Tribunal. An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to the order, and, where the order was made following a complaint (emphasis added) but the complaint has not been settled, the complainant may also request a hearing. R.S.O. 1990, c.P.7, s.24(6).
- In light of this review of the scheme and interaction of the various sections of the Act, we conclude that Review Officers have a broader order-making power than suggested by Counsel for Humber, and that the Part IV Enforcement provisions cannot have been intended to be a complete code driven only by complaints. We further conclude that while engaged in the monitoring function mandated by the Act, a Review Officer could form an opinion that there has been a contravention of the Act and issue an order to rectify it.
25.. In our view, this conclusion is consistent with the scheme of the Act as a whole and with its overriding purpose. It could not have been the intention of the Legislature, in legislation intended to take “affirmative action to redress gender discrimination in the compensation of employees employed in female job classes”, that Review Officers, who are mandated to enforce the Act, and are given very broad powers of entry, production, search and seizure, could do absolutely nothing about a violation which is discovered while monitoring the preparation and implementation of a plan.
26.. Taken to its extreme, the argument made by Counsel for Humber and the interpretation she urged upon us, could result in a pay equity plan which clearly violated the Act, being protected from review by the Pay Equity Commission once it was deemed approved and no complaints were filed with respect to it. This, in our view, would be untenable. To the extent the earlier Tribunal decision in Ontario Northland Transportation Commission, (1992), 3 P.E.R.166 was relied on by Counsel for Humber in support of this proposition we do not accept the obiter comments of that earlier panel as being applicable to the circumstances presented in this case.
Having concluded that Review Officers have the jurisdiction to issue an order with repect to a plan in the absence of a complaint or an objection where they have formed the opinion that there has been a contravention of the Act, we must now consider whether it was appropriate for them to have done so in the circumstances of this case.
Not all contraventions of the Act, even where there is a complaint or an objection, will lead to a review by the Tribunal of the affected pay equity plan where there has been a deemed approval of the plan by operation of the Act. We are mindful of the need for certainty and finality in workplaces. In this case, where the Plan was deemed approved by operation of the Act, and some 9 years passed since the completion of any pay equity adjustments with respect to it, we conclude that Review Services should be in no better position than an employee affected by the plan would have been if a complaint had been filed with respect to the Plan.
29.. The isssue of challenges to deemed approved plans by affected employees and their bargaining agents has now been canvassed by this Tribunal, and the Divisional Court, in a number of decisions: Management Board Secretariat (No. 6) (1998-99), 9 P.E.R. 48, Management Board Secretariat (1993), 4 P.E.R. 58, York Region Board of Education (1993), 4. P.E.R. 51; Ontario Northland Transportation Commission (1994), 4 P.E.R. 19 (Ont. Div. Ct.); Hamilton Civic Hospitals (No.1) (1995), 6 P.E.R. 86; Ottawa Board of Education (No.2) (1996), 7 P.E.R. 9; and, Parry Sound District General Hospital (No.2) (1996), 7 P.E.R. 73.
Applying the principles developed in these cases, we find that had there been an employee complainant in this case, she would not have had unlimited rights to complain about every aspect of the Plan. The right to complain would not, for example, have extended to complaints about contraventions of Part II of the Act.
In Ottawa Board of Education (No. 2) (1996), 7 P.E.R. 73 the Tribunal considered a bargaining agent complaint about a plan which had been deemed approved prior to certification. The Tribunal held that complaints regarding deemed approved plans, in general, must be grounded in Part I of the Act. The Applicant in such a case would be required to show how the compensation practices established by the plan failed to provide for pay equity and would have to do so by reference to the specific provisions of Part I of the Act. Certain provisions of Part I require exact application while other sections leave some discretion to the parties. The Tribunal has applied a reasonableness test when reviewing a deemed approved plan, and the steps taken under the Act to achieve pay equity, with respect to those aspects of the Act which permit discretion but, where the Act imposes an exact requirement, the Tribunal will review the relevant portion of the plan for correctness.
32.. We have heard no evidence with respect to the Plan in this case. Hence we expect the next stage of this case to involve evidence as to the nature of the Plan, the process by which it was implemented and pay equity achieved with a view to considering whether or not the alleged violations of the Act are such that the deemed approval sections of the Act will not operate to protect this Plan from scrutiny.
Dated at Toronto this 20th day of June, 2000
Heather M. MacNaughton, Chair
Margaret Kvetan
Pauline R. Seville