Royal Crest Lifecare Group v. Pay Equity Commission, 2001 CanLII 28104

Pay Equity Hearings Tribunal

0721-01: Royal Crest Lifecare Group Applicant v. Pay Equity Commission, Mandy Warner as Agent for a Group of Unidentified Employees, Lora Monaco and Wendy Loback Respondents

Before: Mary Ellen Cummings, Chair; Margaret Kvetan and Pauline R. Seville, Members.

Cite as: Royal Crest Lifecare Group (No.4) (November 27, 2001) 0721-01 (P.E.H.T.)

DECISION OF THE TRIBUNAL, NOVEMBER 27, 2001

1Royal Crest Lifecare Group (the “employer” or the “Applicant”) has brought a second Application with respect to a Review Officer’s Order dated June 21, 2000.

2This interim decision concerns the request of the Pay Equity Office (the “Office”) of the Pay Equity Commission to participate as a party in this hearing, or alternatively as a “friend of the tribunal” with limited rights to participate, as determined by the panel.

Background

3The first Application was dismissed by the Tribunal for failure to make out a prima facie case (Royal Crest Lifecare Group (No. 1) 2000-01, 11 P.E.R. 36). The second Application was filed on May 11, 2001. In a decision dated June 12, 2001, another panel of the Tribunal dismissed much of the application on the basis that it repeated the same allegations that the Tribunal had dismissed as disclosing no prima facie case. The panel decided that the hearing would be limited to the allegations in paragraphs 18, 20, 23, 24 and 25 of Schedule A to the application and the remedy requested at paragraph 6 of Schedule B (see Royal Crest Lifecare Group (No. 2) (2000-01), 11 P.E.R. 49).

4The Review Officer’s Order concluded that the pay equity plans prepared by the employer for non-union employees at 11 of its facilities were not being implemented according to their terms, and that pay equity adjustments required under those plans had not been paid out. The Order required the employer to comply with its plans, and directed the payment of specific amounts for all hours worked in the years 1994 to 1999.

5To simplify the reading of this interim decision, we will set out the allegations made by the Applicant that are still before the Tribunal:

18. A review of the applicant’s documents and the complaints of those individuals the Commission did not investigate, contrary to section 23(1) of the Act, will unequivocally demonstrate that the Applicant at all material times adhered to the negotiated and Commission approved Pay Equity Plans and remitted all monies owed under the Plans to the Plans’ enumerated recipients;

19. Contrary to the Order’s notation under the subheading “Issue”, all terms of the Pay Equity Plans have been implemented as per the Plans negotiated between the Applicant and the respondent and approved by the Commission;

20. Contrary to the assertion in the Order, 100% of the Employer’s 1% of payroll obligation has been distributed to achieve pay equity adjustments;

21. The adjustments cited in the Commission’s Order fails to parallel the negotiated and approved Pay Equity Plans and further fails to acknowledge that all requisite pay equity monies have been distributed to the intended recipients, which recipients have further signed acknowledgements confirming such receipt;

22. As a result of the Applicant having made all requisite pay equity remittances, the Order is incorrect in directing any additional monies are owing to the Respondents or that retroactive adjustments and/or interest are owing as well.

Schedule B

The Employer is requesting a hearing respecting the enclosed June 21, 2000 Order of Pay Equity Review Officer, Doreen Lurie, and the following remedies:

6. An Order concluding that the Applicant has satisfied all of its pay equity obligations to the Respondents in accordance with the negotiated and Commission approved Pay Equity Plan.

6Responses have been filed on behalf of individual employees and on behalf of an anonymous group of employees. Those employees indicate that they have not received pay equity adjustments and seek to have the Order upheld. At the risk of oversimplification, the issue before the Tribunal is whether or not the employer has, in fact, paid the pay equity adjustments required under its plans.

7The Tribunal gave all parties an opportunity to file submissions with respect to the Office’s request for standing. Only the Office made submissions.

The Office’s Position

8The Office submits first that it is “entitled by law” to be granted standing to participate because it has a substantial and direct interest in the outcome of this case. The Office recognized that the Tribunal has previously determined that to be “entitled by law” to participate, a party would have to show that it has a “substantial and direct” interest in the outcome of the proceedings (see for example Women’s College Hospital (No. 1) ( 1990) 1 P.E.R. 53.

9As counsel for the Office acknowledged, in Mississauga Hydro Electric Commission (1992) 3 P.E.R. 28, the Tribunal determined that the Office was not entitled by law to bring an application pursuant to section 24(5) alleging that a trade union and an employer had reached an agreement that did not comply with a Review Officer’s Order. In that case, the employer and the union had reached a settlement, and neither wished to pursue a review of the Officer’s Order. The Office submitted that it should be permitted to bring an application to meet its public duty to ensure enforcement of its order. At paragraphs 18 and 19, the panel wrote:

18. Section 32(1) of the Act states:

Where a hearing is held before the Hearings Tribunal or where a review officer investigates for the purposes of effecting a settlement of an objection or complaint, the parties to the proceeding are,

(a) the employer;

(b) the objector or complainant; and

(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).

The section sets out the parties to a Tribunal hearing and a Review Officer investigation. The P.E.O. is not listed as a party. By drafting the subsection to include both proceedings before the Tribunal and before a Review Officer, it is not surprising that the P.E.O. was not listed as a party. It would not make sense that the P.E.O be listed as a party when the matter is being investigated by a Review Officer. However, this factor does not assist in determining whether the P.E.O. should be given status in this matter.

19. In addition to those persons listed as parties in the statute, it may be that others are entitled to participate under section 5 of the Statutory Powers Procedure Act, persons who are entitled by law to be parties have the right to be applicants or to be added as parties to a hearing. The test for addition is whether that person is substantially and directly affected by the outcome in the case. In this case pay equity has been negotiated between the employer and the bargaining agent. The parties have completed their pay equity plans and have settled the differences between them. None of the employees affected has complained about the settlement. However broadly "interest" were to be defined, it is clear that the P.E.O. is not affected by the outcome of this case and therefore does not have status as a party to bring this application.

10As counsel for the Office correctly points out, section 32 of the Act has been amended to specifically add that persons “entitled by law” are parties to a proceeding. But since that language is identical to the provision in the Statutory Powers Procedure Act, the amendment does nothing to alter the applicability of the Tribunal’s previous jurisprudence. Counsel notes however, that Mississauga Hydro arose in the context of a unionized environment and in that decision, the Tribunal stressed that the scheme of the Act envisioned employers and trade union taking responsibility for compliance in their workplaces. Counsel submitted that the Tribunal may want to apply different considerations in the context of a non-union workplace.

11Counsel submitted that non-union employees are particularly vulnerable, lack bargaining power, and that the human rights aspects of the Act should be given paramountcy. Counsel submits that the employer has raised significant issues that are important to the adjudication of future pay equity disputes in non-unionized workplaces. Because the statutory scheme for non-union workplaces is different, it is not appropriate for the Tribunal to apply the same criteria to determine if the Office is entitled to participate as a party.

12Counsel argued that the employer has raised significant issues that only the Office is in a position to address. These include whether non-union employees can “negotiate” or reach agreements with their employer to contract out of the Act or otherwise compromise their entitlements. Counsel argued that the calculation of retroactive adjustments is complex, both factually and technically.

13In its response, the Office submitted that “it is entitled by law to standing as a party since there is no other party involved in the current application to provide the arguments advanced by the Office in support of public policy and the interpretation of the Act”. Counsel submitted that since the employees who are responding are unrepresented by counsel and mostly anonymous, they are “the most disadvantaged employees”. Without the involvement of the Office, not only will the purposes of the Act be undermined in this case, but the Tribunal may come to a decision that will affect future cases involving non-union women.

14Counsel notes that the Tribunal’s hearing, while more informal than the courts, is still intimidating to lay persons, and when combined with the complexity of the Act, particularly in a setting where the employees may know nothing about the employer’s pay equity plans, creates an environment where vulnerable employees cannot fully participate without assistance.

15If it is granted status to intervene as a party, it submits that it will bring “…a unique perspective, and unique information and expertise with respect to legal policy and factual issues given its role. It is experienced in the technical aspects of pay equity involved in the determination and calculation of pay equity adjustments as well as legal and policy issues”. The Office believes that while its participation may add to the length of the proceedings, such added time and cost will not be unreasonable when weighed against the benefits of a potentially fairer hearing. In any event, the Office submits that its participation will result in no prejudice to any party.

16The Office acknowledges that section 24(5.1) specifically permits it to make an application to the Tribunal in the event it believes that a person has not complied with an Order, but counsel submitted that the Tribunal should not conclude that this reference precludes the Office from participating in other kinds of proceedings.

17The relevant portions of section 24 are:

24(5) Where an employer or bargaining agent fails to comply with an order under this section, a review officer may refer the matter to the Hearings Tribunal.

(5.1) The Pay Equity Office shall be deemed to be the applicant for a reference under subsection (5).

(5.2) On a reference under section (5) the Hearings Tribunal shall not consider the merits of the order that is the subject of the reference.

(5.3) On a reference under section (5), the person against whom the order was made has the burden of proving that he, she, or it has complied with the order.

18The Review Officer did not refer the matter of the employer’s alleged non-compliance of the Order notwithstanding that more than a year has passed since the Order was made

19Counsel is also concerned that in paragraph 18 of its Application, the employer has raised issues about the Office’s alleged failure to investigate other complaints. To be clear, the Tribunal has no intention of delving into the Office’s exercise of its discretion around investigations. The only part of paragraph 18 that it relevant to the Order under review is the employer’s assertion that it has paid out the pay equity adjustments required by its plans. The Tribunal assumes that the employer is prepared to establish that allegation by reference to its payroll records or other company documents. It is not the Tribunal’s intention to have regard to the complaints of others to measure whether or not the Applicant has complied with its plans.

20In the alternative, the Office requests that it be permitted to participate as a non-party intervenor because the arguments and facts it can provide will be of assistance to the Tribunal and no other party will present those interests in an efficient and appropriate manner.

Decision

21Essentially, the Office is asking the Tribunal to distinguish its determination in Mississauga Hydro, and find that the Office does have an “interest” in the outcome of a workplace pay equity dispute. The Office relies, principally, on the differences in the structure of the Act and the resources available to non-union employees to effectively respond to a challenge to an Order mounted by their employer.

22While it is true that the structure of the Act is different in union and non-union workplaces, the role of the Office in relation to the workplace parties is the same, particularly in the mechanisms available to enforce its orders. Pursuant to section 24(5), a Review Officer may seek to enforce compliance with an Order by making a referral to the Tribunal, with respect to both union and non-union workplaces.

23In Mississauga Hydro and other cases of the Tribunal that have considered the request of non-workplace parties to intervene, the Tribunal has not created or relied on tests different from the common law. The use of the words “entitled by law”, a term of art with long and well-settled definition, in both in the Statutory Powers Procedure Act and in the Act, signals an intention by the Legislature that the Tribunal would ascribe to those words their usual meaning. As the Tribunal set out in Mississauga Hydro, the panel must ask whether the party seeking to intervene will be substantially and directly affected by the outcome in the case?

24In our view the answer is no. We agree that the Office has a statutory mandate to promote and educate about pay equity. The Act gives the Office a particular jurisdiction to investigate complaints, objections to plans and to determine if employers are in compliance with their pay equity obligations. Where the Office is satisfied that there has been a contravention of the Act, and its efforts to mediate are unsuccessful, the Office’s Review Officers have the power to issue Orders. The powers and responsibilities of the Office are important public duties, and in the exercise of those obligations, there is no doubt that the goals of the Act will be generally advanced. It is fair, then, to say that the Office has an interest in the encouragement of pay equity in the Province. But an interest in pay equity generally does not amount to a direct and substantial interest in the outcome of a particular case.

25In the panel’s view the Office, with the best of intentions, has confused its role as an advocate for pay equity with a role as advocate for particular individuals. The Tribunal does not dispute the Office’s assertion that unrepresented parties may find themselves at a disadvantage at a hearing. The process is a quasi-judicial one and although the Tribunal makes efforts to explain procedures and give appropriate direction, the panel must maintain its neutrality and not act as advocate for any party. But a party’s decision not to retain counsel does not establish a legal basis for the Office’s right to participate as an interested party.

26Moreover, in Royal Crest Lifecare Group (No. 1), the employer had named the Office as a responding party. The Office brought the motion that ultimately led to the Tribunal dismissing the application for failing to make out a prima facie case that the Act had been breached. As part of its submissions, the Office took the position that it ought not be a party because it was neither a listed party in section 32(1)(d) nor was it entitled by law to be a party because it had neither a substantial nor direct interest in the outcome of the case. We conclude, with respect, that this is the more compelling argument.

27Turning to the alternative submission, the Office would like to appear as a friend to the Tribunal, on the basis that the unrepresented employees may not be in a position to address all of the legal issues raised by the employer and the Office submits that its participation “…would assist in the achieving the purposes of the Act”. The Tribunal has a discretion to permit the intervention of a non-party where the Tribunal believes that the involvement would assist it in some way.

28The panel has reviewed the employer’s pleadings, or rather what remains of them, quite carefully. In our view, this case does not raise particularly complex issues. The employer, who bears the onus of proof, submits that the Order ought to be struck because the employer has already paid out the adjustments required under its plans. The Officer made no direction that the employer amend its plans in any way; the Officer accepted that the pay equity plans met the requirements of the Act, but concluded that the employer had not made the payments it had promised to make. In order to be successful, the employer will have to prove it made those payments. That is the issue. The panel is not satisfied that in resolving that issue, the Office’s expertise would be of particular assistance.

29The Office’s request to intervene is denied.

30The style of cause will be amended to remove the Office as a respondent.

31The Deputy Registrar is directed to schedule this matter for 2 days of hearing. In the event that efforts to find mutually convenient dates are not readily successful, the Deputy Registrar is directed to set hearing dates on a peremptory basis.