PAY EQUITY HEARINGS TRIBUNAL

0697-99 Parkdale Focus Community Project, Applicant v. Group of Employees,

Respondents

Before: Mary Anne McKellar Chair, and Members Margaret Kvetan and Pauline R. Seville

Appearances: Roger Rowe for the Applicant

Cite As Parkdale Focus Community Project (June 19, 2000) 0697-99

(P.E.H.T.)

INTRODUCTION

1. This is an application by the Parkdale Focus Community Project (“PFCP”) to revoke the Order of a Review Officer dated March 26, 1999, which declared PFCP to be a seeking employer under s. 21.12(2) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”). As a consequence of being declared a seeking employer, PFCP would be required to use the proxy method of evaluation in implementing pay equity for its female job classes.

2. Although the Tribunal required PFCP to provide broad notice of its application to its affected employees, no one filed a response.

3. A single day of hearing was scheduled to deal with this on May 2, 2000. PFCP was the only party who attended the hearing.

THE ISSUE

4. PFCP takes the position that it is not a public sector agency and therefore cannot be declared a seeking employer.

5. The crux of PFCP’s position is set out in two paragraphs of its Application:

PFCP has never provided any services relating to addiction as described in s. 1 (h.1) Schedule to the Pay Equity Act, Ontario Regulation 393/93.

By order pursuant to s. 21.12 (2) of the Pay Equity Act dated March 26, 1999, Officer Hershorn held that the Act applied to PFCP. The officer purported to rely on s. 3(1) of the Pay Equity act [sic] and s.1 (h.1) Schedule to the Pay Equity Act, Ontario Regulation 393/93.

6. There are some obvious errors in the above characterization of the issue. The Order does not on its face refer to the provisions of O.Reg. 393/93. Furthermore, this regulation deals with limitations on maintaining pay equity and has nothing to do with the proxy provisions of the Act. The regulation that deals with the identification of seeking employers is O.Reg. 396/93. This regulation, however, does not contain any provision identified as s. 1(h.1). Section 1(h.1) is found under the heading “Ministry of Health” in the Appendix to the Act, and does refer to agencies that provide “services relating to addiction”.

7. Notwithstanding the above, the Tribunal agrees that, for the purposes of this Application, the issue before it is whether PFCP is a

“. . .corporation or organization of persons, other than one that has no employees other than employees who directly or indirectly control it, that operates or provides, services related to addiction if the provider of the services receives funding from the Ministry of Health.”

THE DECISION

8. The Tribunal declines to revoke the Review Officer’s Order.

THE FACTS

The Evidence Before the Tribunal

9. The following recitation of facts is based on the evidence of three witnesses: the viva voce testimony of Brigitte Leclerc, Programme Coordinator, Provincial and Community Programs, Ministry of Health; and the affidavit evidence of Susan D’Oliveira, Treasurer of PFCP and Jilian Saweczko, Chairperson of PFCP. All of the evidence was tendered by PFCP. Because no named respondent filed a response with the Tribunal or attended the hearing, none of the witnesses were cross-examined by an opposing party.

10. The Tribunal itself asked Ms. Leclerc some questions respecting her testimony. Counsel for PFCP did not object to our doing so, although he did object to one particular question put to her respecting her knowledge of whether the phrase “services relating to addiction” appeared in any other legislation under the purview of the Ministry of Health, or in any policy or program manuals generated by that Ministry. The basis for the objection was that Ms. Leclerc was not a lawyer and was therefore not competent to provide a legal opinion. Even after the panel clarified that it was not asking Ms. Leclerc to interpret legislation, but merely to indicate if she was aware of any working documents employing the phrase “services related to addiction”, counsel for PFCP persisted in his objection. In view of this objection, we withdrew the question, although Ms. Leclerc had already referred to one program manual that she brought with her. It was made an exhibit and counsel for PFCP undertook to obtain a clean copy of it and provide it to the panel subsequent to the hearing. The panel also advised counsel for PFCP that he should address the question of whether any legislative instruments referred to “services related to addiction” in his closing argument.

11. Counsel for PFCP also objected to our questioning the affiants, who were in attendance at the hearing. Although he conceded that quasi-judicial tribunals often pose questions to witnesses, he submitted that we would be “descending into the arena” in doing so in the absence of an opposing party. Once again he persisted in his objection even after the panel clarified that it would be seeking to ascertain whether PFCP had employees who were not members of its board and would be seeking a fuller description of the programs and services it provides. Although questioning Ms. Oliveira and Ms. Saweczko might well have assisted the panel in its appreciation of the facts, we declined to do so in the face of counsel’s strong objection. We clearly indicated that we would determine the case on the basis of the evidence presented in the affidavits and in the course of Ms. Leclerc’s testimony. We would however note that it is the manner in which a trier of fact questions witnesses, rather than the fact that she questions them, which generally gives rise to concerns about “descending into the arena” and losing impartiality.

12. At the conclusion of legal submissions on May 2, 2000, the Tribunal indicated that it was reserving on the decision. The hearing was adjourned, but two questions were posed to the panel prior to its leaving the hearing room. One of the representatives of PFCP asked when the Applicant might expect the decision, but the Tribunal was unable to commit to a firm date, indicating merely that it would issue the decision “shortly”. Counsel for PFCP asked, “Are there any other matters that the panel wants to see addressed here or through written submissions?”. The chair of the panel replied, “If you are content with the evidence you’ve adduced today, we have nothing further.”

13. In his May 8, 2000 letter, counsel for PFCP also indicated he would be forwarding copies of the document referred to by Ms. Leclerc in her testimony and already marked as an exhibit in the proceedings.

14. By letter dated May 25, 2000, counsel for PFCP forwarded copies of the exhibit. He also enclosed copies of four additional documents generated by the Ministry of Health and which he had obtained from Ms. Leclerc. His letter referred to specific pages in these documents and contained the following submission:

The above publications corroborate the testimony of Brigitte LeClerc at the hearing, that PFCP was never funded for services related to addiction and never delivered such services; that Ministry of Health funding of PFCP was always done through its Health Promotion Branch; that the Ministry of Health funding of services relating to addiction is done only through its Health Recovery Branch, from whom PFCP never received any funding.

We thus ask that the tribunal admit these additional materials for the purposes of this appeal because of their relevance and probative value in respect of the main issue before the tribunal.

15. As well, the May 25letter contained a reference to a request that PFCP counsel made in his May 8, 2000 letter:

In respect of the tribunal’s request on May 2^nd, 2000, to question Ms. D’Oliveira and Ms. Saweczko, may we have a response to our May 8^th, 2000 correspondence in which we requested that the tribunal panel confirm to us in writing what issues it alleges were not addressed in the affidavit materials, that it wishes to question these deponents about, so that we may have fair notice and an opportunity to prepare a response prior to reconvening of this matter.

16. The Tribunal takes this opportunity to comment on the letters of May 8 and May 25, 2000. At the risk of repeating ourselves, we note that a witness whose evidence is proffered may be cross-examined by a party adverse in interest on any relevant matter within his or her competence. Similarly, a tribunal, provided it does not improperly descend into the arena, may ask the witness questions on the same basis. The requirements of natural justice and fairness do not extend so far as to require advance notice of the questions to be put to the witness. In any event, the panel did indicate the nature of the questions it wished to ask. In our view, those questions would not have expanded the scope of the inquiry by introducing new issues with the consequence that notice might be required. The issue remained the same: do PFCP’s activities amount to the provision of services related to addiction? In the face of counsel’s objections at the time, the panel withdrew a question it had posed to Ms. Leclerc and declined to question the affiants at all. At the conclusion of the hearing counsel for PFCP made legal submissions and the panel adjourned the proceeding and reserved on its decision. There is no basis for any suggestion that the hearing would be reconvened. It has ended. Counsel for PFCP made strategic decisions when he proffered evidence by way of affidavit and when he made the objections he did. The panel did nothing to curtail or restrict the evidence he wanted to call. Although it was not obliged to do so, the panel abandoned its requests for further elucidation in the face of his strong objections. At no time prior to the Tribunal’s reserving its decision, did counsel for PFCP ever indicate that he wished an adjournment to call further evidence, or request an opportunity to make further submissions.

17. In our view, there must be some finality to proceedings. A party should not normally be permitted to introduce new evidence after closing his or her case unless that evidence was not available earlier. Similarly, a party should not be permitted to make further submissions once the panel has adjourned the proceeding and reserved on its decision, regardless of whether or not a responding party has participated in the proceeding. We have carefully reviewed PFCP’s letter of May 25, 2000 in light of the above principles. While those principles would ordinarily suggest that we should disregard the additional materials attached to, and the submissions made in that letter, we have nevertheless determined to consider them, for two reasons. First, it is possible that the chair’s remark as the panel left the hearing room – “ If you are content with the evidence you’ve adduced” – may have left the impression that further evidence or submissions would be entertained. Second, the materials provided appear to relate to the question that counsel objected to Ms. Leclerc answering, but which he was specifically directed to address in his closing submissions. We are therefore prepared to regard those materials as equivalent to authorities provided subsequent to final submissions.

What is PFCP and what are its activities?

18. PFCP has operated in Toronto’s Parkdale neighbourhood with funding from the Ministry of Health (“MOH”) since 1991. The origins of PFCP are described as follows in the 1993 Action Plan PFC filed with the MOH:

It is widely known that Parkdale has over the past years had a significant substance abuse problem. The Addiction Research Foundation (A.R.F.) strongly supported this position in their 1990 report to the Provincial Anti-Drug Secretariat, “Parkdale; Profile of Pilot Site”. The Secretariat recognized this problem and established a Focus Community Project in Parkdale to assist the community in developing strategies to address substance abuse. (Ex. 4 at p. 89)

19. Although PFCP’s promotional materials filed with us include various different articulations of its Mission Statement and project goals, all communicate a desire to utilize various community partnerships to deliver programmes aimed at preventing drug and alcohol abuse. As one Mission Statement says, “We are committed to addressing the root causes of alcohol and other drug abuse in partnership with the community” (Ex. 4, p. 64). The 1993 Action Plan also summarizes some of the findings of an extensive report on addiction in Parkdale as support for its alcohol intervention strategy (Ex. 4, p. 91).

20. PFCP applied for and received operating grants from the Ministry of Health from 1991 until 1998. For each of those years commencing in 1993, copies of the Action Plan PFCP provided to the MOH were filed with the Tribunal. These detail the various programmes offered by PFCP and indicate the nature of the community partnerships it established, as well as links it forged with other agencies. The documents repeatedly refer to PFCP’s reliance on the resources of the Addiction Research Foundation. For example, one undated brochure states that "each and every year since 1990, the Addiction Research Foundation has been responsible for conducting community surveys to evaluate the effectiveness of the programs and will continue to perform these up until 1996.” (Ex. 4 at p. 66). A reference in the 1994 Action Plan indicating that “we have been without an A.R.F. consultant for much of this year”, suggests that such a consultant was normally available as a resource to PFCP (Ex. 4, p.126). The same Action Plan indicates an intention to offer repeat screenings of an A.R.F. produced video on fetal alcohol syndrome (Ex. 4, p. 132). The 1995 Action Plan also indicates reliance on the A.R.F.’s expertise in marketing (Ex. 4, p. 161) and needs assessment and training (Ex. 4, p. 162). The 1996 Action Plan indicates PFCP’s intention to co-sponsor a workshop with the A.R.F. relating to the relationship between substance abuse and violence towards women and children (Ex. 4, p. 219). The 1997 Action Plan relating to PFCP’s “New Hope” programme indicates that staff members have received A.R.F. training, and that an A.R.F. representative sits on the programme’s steering committee (Ex. 4, p. 225).The October, ’97 – March ’98 Action Plan indicates that A.R.F. will be helping to organize the training of new members of the PFCP board of directors (Ex. 4, p. 240).

21. From 1991 to 1998, PFCP was incorporated, had a board of directors, and acted as a stand-alone agency in the delivery of its programmes. Similar bodies operating in other communities or neighbourhoods also operated and received funding from the MOH on this basis. In late 1997, the Ministry of Health proposed that PFCP and these other bodies providing similar services cease to operate as stand-alone bodies. Instead, each was to form a partnership with a “lead agency”. Under this arrangement, the MOH would agree to fund the PFCP programmes for a five year period, ending March 31, 2003, but that funding would be delivered to the lead agency, under whose auspices PFCP would offer its programmes.

22. PFCP first attempted to enter into a partnership with the Community Older Persons Alcohol Program (“COPA”). When COPA sought assurances that PFCP had resolved any outstanding pay equity liabilities, Susan D’Oliveira contacted the Pay Equity Office to inquire whether the Act applied to PFCP. As a result of those inquiries, the Officer issued the order to which PFCP now objects. PFCP has since entered into a partnership with St. Christopher House as the lead agency.

23. As noted earlier, PFCP’s position is that it has never operated or provided services related to addiction. Bald statements to that effect are found in each of the affidavits filed. Similarly, PFCP counsel asked Ms. Leclerc if PFCP ever provided services related to addiction, and she replied, “no”. When the panel asked how she would define the phrase “services related to addiction”, she replied that such services would be provided to people suffering from addiction who attend treatment facilities, either on a residential or outpatient basis, or who attend at recovery houses in attempts to remain clean and sober. This description is consistent with the funding parameters set out in the Guidelines pertaining to applications for five-year funding. These Guidelines clearly state that the health promotion branch will not fund direct treatment of or recovery from addiction. As Ms. Leclerc clearly stated, “our funding is for health promotion”.

24. Bodies such as PFCP may also obtain funding from other sources, as Ms. Leclerc noted. The MOH does not control how that money is spent. She was asked whether any of the funds provided by the MOH to St. Christopher House, the lead agency with which PFCP eventually affiliated, went to direct treatment of addiction, and she again replied, “none of our money, we deal with health promotion”.

25. The Guidelines also stress that prevention is “one of three priority components” to deal with substance abuse. Ms. Leclerc was unable to tell us what the other two are, since she does not deal with them. She did suggest, however, that the MOH Substance Abuse Strategy would provide the Tribunal with the answer to that question.

26. The Tribunal asked Ms. Leclerc if there was a common understanding or parlance within the MOH that would assist us to understand the phrase “services related to addiction”, but she was unaware of one.

27. The affiants both deposed that PFCP has never engaged in the delivery of services related to addiction. Because the Tribunal was unable to question them, we do not know precisely what these witnesses meant when they used the phrase “services related to addiction”. From our review of the exhibits attached to the affidavit of Ms. Saweczko, which included PFCP programme brochures, mission statements and reporting documents to the MOH, it appears that PFCP focussed on the delivery of programs designed to prevent persons from abusing alcohol or drugs. In other words, their definition of “services related to addiction” appears to comprise only direct treatment or recovery. We note that this distinction is set out in PFCP’s 1995 Action Plan:

Although we believe that our program falls into the definition of prevention and health promotion programs, we did nevertheless partner with a treatment mandated agency, the Queen Street Mental Health Centre, and received temporary operational funding for the Drop-In. With the Ministry’s support, and according to the objectives of “Putting People First”, this funding could be sustained. (Ex. 4, p. 147)

THE ANALYSIS

28. PFCP seeks to revoke the Review Officer’s Order. Contrary to the assertion of PFCP’s counsel, the absence of a Respondent at this hearing does not automatically entitle PFCP to the relief sought. PFCP must provide the Tribunal with both an evidentiary and a legal basis for revoking the Order. Even where parties consent to the revocation or variation of an order, the Tribunal requires that they demonstrate that the Tribunal has jurisdiction to grant the relief sought, that the relief sought is not contrary to the Act, and that there is an evidentiary basis for the granting of that relief. See Glengarry Industries Limited (1992), 3 P.E.R. 27; and Peterborough Civic Hospital (1992), 3 P.E.R. 8. An Applicant seeking to revoke a Review Officer’s Order in the absence of a Respondent must still meet this standard. See BICC Phillips (1997), 8 P.E.R. 142.

29. In this case, the Order can only be revoked, and the Act found not to apply to PFCP if the Tribunal can conclude that PFCP does not operate or provide “services related to addiction”.

30. The exercise the Tribunal is being asked to engage in is one of statutory interpretation. In the context of the Act and its regulations, what are services related to addiction? As with any exercise of statutory interpretation, there are several principles to keep in mind. The first is that words and phrases in a statute are to be given their plain meaning, unless the context suggests a more specialized meaning. “Services related to addiction” is not defined in the Act, nor did counsel for PFCP point us to any other legislation or jurisprudence in which its meaning had been considered. Indeed, he objected to the panel’s asking Ms. Leclerc if she was aware of any other legislation administered by the MOH in which it was even used. Consequently, we are left with giving it its plain meaning. On that basis, it appears to the Tribunal that the phrase “services related to addiction” is broad enough to encompass programs aimed at preventing addiction. Indeed, a 1993 document prepared by the MOH’s Substance Abuse Bureau, Partners in Action: Ontario’s Substance Abuse Strategy, makes it clear that the province has developed a comprehensive strategy for dealing with addiction, and that this strategy encompasses health promotion (PFCP’s focus), direct treatment, and justice and enforcement issues.

31. An examination of the rest of the Appendix to the Act confirms the Tribunal’s view that the above interpretation of s. 1(h.1) is the correct one. The following are listed separately as MOH agencies: rehabilitation centres (s. 1(g)); detoxification centres (s. 1(h)); and the Alcoholism and Drug Addiction Research Foundation (s. 6). This list suggests that “services related to addiction” are not confined to the direct treatment of addiction or its recovery, because if that were the case, there would be no need to list rehabilitation and detoxification centres separately.

32. The Tribunal is also mindful of the fact that the Act is remedial legislation. As such, exclusions to its application ought to be construed narrowly. This principle of statutory interpretation again argues for an expansive reading of “services related to addiction” to encompass more than direct treatment or recovery programs.

DECISION

33. In the absence of PFCP providing us with a compelling reason for a narrow reading of the phrase “services related to addiction”, we find that health promotion programmes aimed at preventing alcoholism and the abuse of alcohol and other drugs do indeed constitute services related to addiction. Where such services are funded by the MOH, the service providers fall within the ambit of s. 1(h.1) of the Appendix pertaining to the MOH and are considered to be public sector employers for the purposes of the Act.

Dated at Toronto this 19^th day of June, 2000

Mary Anne McKellar, Vice-Chair

Margaret Kvetan

Pauline R. Seville