PAY EQUITY HEARING TRIBUNAL
0737-02 General Health Services o/a Circle of Life Health Services, Applicant v. Toronto East General Hospital, Collin Buchanan, Basil Chinenye, Roxanne Edwards, Respondents
Before: Mary Anne McKellar, Vice-Chair, Catherine Bickley and Margaret Kvetan, Members
Cite as: Circle of Life Health Services (November 5, 2002) 0737-02 (P.E.H.T.)
DECISION OF THE TRIBUNAL, NOVEMBER 5, 2002
1General Health Services, o/a Circle of Life Health Services (“Circle of Life”) objects to the Order of a Review Officer dated February 7, 2002 directing the Toronto East General Hospital (“the Hospital”) to amend its non-union pay equity plan to encompass the female job classes that performed services for the Circle of Life clients. Circle of Life takes the position that it, and not the Hospital, was the employer of persons in these job classes, and furthermore, that the positions comprising the job class(es) were designated as casual and could be excluded from receiving compensation adjustments under the Pay Equity Act.
2The Hospital has filed a Response to the Application, in which it indicates its agreement both with the particulars set out in the Application and with the requested remedy. Three individuals who performed services for Circle of Life clients have also filed Responses, in which they appear to seek to have the Order confirmed.
3By notice dated July 24, 2002, this matter was listed for hearing on November 25 and 27, 2002 in Toronto.
4By letter dated October 25, 2002, counsel for the Applicant advised the Tribunal of the following:
Blanche … O’Brien was primarily responsible for the operation of Circle of Life. She performed all of the operational, administrative and employment functions pertaining to Circle of Life. She was the primary contact with the Circle of Life employees.
Circle of Life ceased its operations in June, 2000. At that point in time, Mrs. O’Brien was 67 years of age. She had intended to retire prior to June, 2000. However, she postponed her retirement until June, 2000 at the Hospital’s request so that she would continue to administer Circle of Life until it ceased business.
Mrs. O’Brien is now 69 years of age. She has a heart condition. Prior to the July 19, 2002 pre-hearing conference she informed me that she found the entire process of preparing for and potentially appearing at a Tribunal Hearing very stressful. She informed me that she was concerned that the experience could be detrimental to her health and that she may not be able to attend at the pre-hearing conference or participate in the proceedings thereafter….
For the reasons stated above, Mrs. O’Brien is a key and essential witness with regard to Circle of Life, its operations and its employees. Circle of Life was a very small operation. Mrs. O’Brien was the only person who carried out the operational, administrative and employment functions for Circle of Life. There is no other person who could provide the testimony that Mrs. O’Brien can provide….
Mrs. O’Brien has informed me that the only way she can provide this testimony to the Tribunal which will not jeopardize her health is for her to swear an affidavit of her testimony based upon the information contained in the February 15 and November 15, 2001 letters.
Mrs. O’Brien has stated that even the thought of being videotaped or participating in a video conference is very stressful for her and she feels that these procedures could be harmful to her health.
5The Tribunal is a quasi-judicial body. Proceedings before it are adversarial in nature and governed by the Tribunal’s Rules of Practice and the Statutory Powers Procedure Act. Evidence is normally adduced before it through the viva voce testimony of witnesses, who are subject to oral examination by the party calling them and to cross-examination by the opposing party. The practice of cross-examination permits the opposing party to “test” the assertions of the witness. The rules of fairness and natural justice demand that they be given such opportunity. The practice of hearing the evidence viva voce permits the Tribunal to observe the demeanour of the witness while testifying, and to seek clarification of the testimony. These are all critical aspects of the fact-finding process in which the Tribunal is engaged.
6Although the Tribunal has in the past permitted evidence to be admitted by way of affidavit, it has only done so where such request was unopposed by any other party, and where the affiant was subject to viva voce cross-examination, or in the case of an Application to which no one responded, where the affiant was made available to the Tribunal for questioning. See BICC Phillips (1997), 8 P.E.R. 142.
7While the Tribunal is sympathetic to the fact that Mrs. O’Brien may be nervous about testifying before it, that nervousness, even coupled with a subjective concern about the effect that testifying might have on her health, does not provide sufficient basis at this time for derogating from the Tribunal’s normal practices. The Tribunal is always prepared to do what it can to alleviate the nervousness of witnesses by explaining the hearing process to them, allowing them time to consider their answers or review documents before answering, and providing short recesses as required.
8Should counsel continue to seek to have Mrs. O’Brien excused from attending the hearing and providing viva voce testimony to the Tribunal, he is directed to provide the Tribunal and the other parties with the written evidence of a medical practitioner setting out the specific restrictions that her medical condition imposes on her ability to testify in person before the Tribunal, and why those restrictions cannot be accommodated in the hearing process. Some examples of accommodation the Tribunal might be willing to consider include changing the hearing location or hearing room set up, adjusting the start time or length of the hearing day, providing for more frequent recesses or timing them to meet the witness’ medical needs, and arranging for the use of any necessary assistive devices. Such evidence is to be provided to the Tribunal and the other parties by no later than 5:00 p.m. Wednesday, November 13, 2002.
9In the event that the Tribunal is persuaded by the medical evidence provided that Mrs. O’Brien should not be required to attend for viva voce examination and cross-examination before the Tribunal, the Tribunal may determine that her evidence should be adduced through one of the following means:
- Live electronic examination and cross-examination, either video or audio;
- A sworn affidavit followed by viva voce cross-examination before the Tribunal (and including any questioning by the Tribunal members);
- A sworn affidavit (prepared by her own lawyer) responding to the written interrogatories of Applicant’s counsel (served in advance on all other parties), followed either by viva voce cross-examination before the Tribunal, or by a further affidavit (prepared by her own lawyer) responding to the written interrogatories of the other parties or the Tribunal; or
- A video-taped examination and cross-examination conducted off the Tribunal’s premises, followed by her availability for viva voce questioning by the Tribunal.
Along with providing the medical evidence as directed above, counsel for the Applicant is also directed to identify for the Tribunal and the other parties in writing which of the preceding options he prefers and why. That information is also to be provided by no later than 5:00 p.m. Wednesday, November 13, 2002.
10The Hospital and the other Respondents are directed to advise the Tribunal in writing of their position with respect to any renewed request that Mrs. O’Brien be excused from attending before the Tribunal to be examined and cross-examined, including the sufficiency of the medical evidence provided. They are also directed to identify which, if any, of the alternative options for the adducing of her evidence set out in paragraph 9 above they prefer, and why. This information is to be provided to the Tribunal and the other parties by no later than Tuesday, November 19, 2002.
11In the event that the Applicant’s counsel does not provide the Tribunal and the other parties with timely submissions pursuant to the directions set out in paragraphs 8 and 9 above, he will be presumed to have abandoned his request that Mrs. O’Brien be excused from attending before the Tribunal for viva voce examination and cross examination.
Dated at Toronto this 5th day of November, 2002
___________________________ Mary Anne McKellar, Vice-Chair
___________________________ Catherine Bickley, Member
___________________________ Margaret Kvetan, Member