Pay Equity Hearings Tribunal

0734-01 Ontario Northland Transportation Commission, Applicant v. Ontario Northland Employees Independent Union, Respondent

Before: Mary Anne McKellar, Vice-Chair and Members Catherine Bickley and Margaret Kvetan

Cite as: Ontario Northland Transportation Commission, (May 10, 2002) 0734-01 (P.E.H.T.)

DECISION OF THE TRIBUNAL, MAY 10, 2002

1. By its Application dated December 21, 2001, the Ontario Northland Transportation Commission (“the ONTC”) objects to the Review Officer’s Order dated November 23, 2001 (“the Order”). The grounds for the objection are twofold: the Officer did not have jurisdiction to make the Order; and, in the alternative the Order was wrong.

2. ONTC’s Application stated the following:

3. ONTC operates, inter alia, a railway, ferry service, telephone company and bus company. ONTC states that the Ontario Pay Equity Commission did not have jurisdiction to make the Order in question, and that the Pay Equity Act, R.S.O. 1990, c.P.7 (“PEA”) does not apply in the circumstances of this matter, having regard to judicial authority which either post-dates the Tribunal’s decision of September 30, 1992, or was not considered by the Tribunal in that decision.

4. By letter dated February 11, 2002, the Deputy Registrar of the Tribunal wrote to the parties acknowledging receipt of the Application and adding:

The Tribunal asks that the Applicant provide it with further submissions, identifying the authorities on which it relies, in connection with its assertion that the Pay Equity Act does not apply in the circumstances of this Application and that the Review Officer’s Order was outside the jurisdiction of the Pay Equity Commission. Please indicate whether argument on this point will be made as a preliminary motion before the Tribunal and, if so, provide an estimate of hearing time required. Submissions should be provided to the Respondent Union and the Tribunal by March 8, 2002.

The Respondent Union is encouraged to respond fully to the Employer’s submission and may file its submissions by no later than March 20, 2002.

4. By letter dated February 20, 2002, ONTC advised the Tribunal as follows:

Further to your letter of February 11, 2002, we may advise that it is the Employer’s intention to raise its objection to the Review Officer’s jurisdiction to issue the order as a preliminary matter before the Tribunal. We estimate that a full day of hearing is required to hear the Employer’s argument, the Union’s response, and any reply argument of the Employer….In accordance with the Tribunal’s direction, our submission with respect to the jurisdictional issue will be provided to the Respondent Union and the Tribunal by March 8, 2002.

5. ONTC’s submissions dated March 8, 2002 include the following two paragraphs:

6. The Ontario Pay Equity Commission did not have jurisdiction to make the order in question in that the Pay Equity Act, R.S.O. 1990, c. P.7 (“PEA”) does not apply to the operations of the ONTC affected by the order, which operations are subject to the federal legislative authority.

7. The Pay Equity Commission is established by the PEA, an enactment of the provincial legislature. As such, the Act and Commission can only regulate the affairs of employers and employees which are subject to the provincial jurisdiction. In particular, the provincial legislature has no authority to regulate employees and employers employed in federal undertakings.

8. The Tribunal also received written submissions from the Respondent Union. For the purposes of this decision, however, it is not necessary to refer to their contents beyond noting the assertion that the Act applies to ONTC because it is a provincial crown agency. Based on our review of the Application and the submissions of the parties, the Tribunal wishes to make several observations about certain procedural issues it has identified as a consequence of the constitutional question raised.

9. The Tribunal has reviewed the Order. It makes no reference to the issue of the constitutional jurisdiction of the Pay Equity Commission or the application of the Act. The Tribunal has frequently held that a jurisdictional pre-requisite to its deciding a matter is that the matter was canvassed at Review Services. Where the Tribunal concludes that a matter has not been canvassed with the parties at Review Services, it will decline to hear the matter until that process has been exhausted:

…the Act envisages and confers on the Tribunal the jurisdiction to adjudicate the matter only after a Review Officer has investigated and attempted to settle it. In previous decisions the Tribunal has stated repeatedly that it will not allow parties to make an “end run” around the Review Services process by bringing directly to the Tribunal for adjudication an issue that was not raised at Review Services (see Scarborough (No.1) (1994) 5 P.E.R. 45, at para. 17). Similarly, the Tribunal has said that it will not allow parties to “short circuit” the Review Services process by bringing a matter to the Tribunal for adjudication before the Review Services process has been exhausted (see Thunder Bay Family and Children’s Services (1990), 2 P.E.R. 27, at para. 10 and 14, and Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50, at para. 9). Whether the Review Services process has been exhausted is a determination the Tribunal makes having regard to: whether an order has been issued; the length of time the matter was at Review Services, the number of meetings that have occurred with respect to it; and what the Review Officer may have indicated about his or her intention to make an order or referral (See Haldimand-Norfolk (No.1) (1989), 1 P.E.R. 1, at para. 37; St. Michael’s Hospital (No.2) (1991), 2 P.E.R. 187, at para. 22ff.; and St. Joseph’s Villa (No.1) (1993), 4 P.E.R. 33, at para. 2).

(Villa Colombo (1997), 8 P.E.R. 133 at para. 13)

8. The rationale for the above approach has been articulated as follows:

9. In general, the Review Office is responsible both for trying to settle disputes and, where the parties are unable to agree, for issuing orders. The settlement process is integral to the efficient functioning of the Commission. It is consistent with the underlying thrust of the legislation that pay equity is to be achieved by the relevant parties themselves. Where the parties cannot agree, the legislation provides for further efforts to reach agreement through discussions with a Review Officer. Under subsection 16(1), the Review Officer “shall investigate the matter and endeavour to effect a settlement” (emphasis added); under subsection 23(1), the Review Officer “shall investigate the complaint and may endeavour to effect a settlement” (emphasis added). Regardless of whether the difference in wording has any significance, it is clear that there is at the very least a discretion in, and perhaps an obligation on, the Review Officer to encourage the parties to settle the dispute between (or among) them. We agree that it is for the Tribunal to decide whether the preconditions of its holding a hearing under paragraph 25(1)(a) have been met, as the panel in Haldimand-Norfolk (No.1), supra, determined.

Thunder Bay Family and Children’s Services, supra.

9. Pursuant to subsection 23(1) of the Act, the mandate of Review Officers is to investigate and endeavour to settle complaints, failing which they may decide the complaints by order, or may refer them to the Tribunal. In the circumstances of this case, where the preliminary issue raised by ONTC appears to involve a pure question of law, it is not at all clear to the Tribunal that any useful purpose might be served by the Review Officer’s investigation into the constitutional issue. Similarly, it is not at all clear that there is room for a negotiated settlement where one party simply resists the application of the Act.

10. The Application and the Submissions also characterize the issue before the Tribunal as one related, in part, to the Pay Equity Commission’s jurisdiction. Pursuant to subsection 27(2) of the Act, the Commission comprises both the Pay Equity Office and the Tribunal. It has been the Tribunal’s practice to provide the Pay Equity Office with notice of and an opportunity to participate in proceedings related to applications that challenge the jurisdiction of the Pay Equity Office or its role under the Act. See Grey Bruce Regional Health Centre (1990), 1 P.E.R. 86, at para. 5.

11. The position taken by ONTC on the preliminary issue of jurisdiction does not appear to relate uniquely to the jurisdiction or institutional competence of the Pay Equity Office, but rather to encompass questions about the application of any part of the Act to ONTC. In other words, it might equally have been framed as directed at the constitutional competence of the Tribunal to apply the Act to ONTC. Additionally, the Tribunal notes that the decision of the Supreme Court of Canada in Bell v .Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854 appears to raise an issue as to whether the Pay Equity Office is the kind of administrative agency that possesses the jurisdiction to determine its own constitutional competence.

12. In view of the foregoing observations and the fact that a hearing date for dealing with the preliminary question of constitutional jurisdiction has been scheduled for June 13, 2002, the Tribunal is providing notice of this Application to the Pay Equity Office. The Tribunal directs the Pay Equity Office and the parties to do the following:

(a) Advise the Tribunal and each other by May 17, 2002 of their positions with respect to whether the Tribunal has jurisdiction to determine the preliminary issue of the constitutional applicability of the Act having regard to the fact that this issue does not appear to have been canvassed at Review Services, including whether Review Services has jurisdiction to determine its own constitutional competence;

(b) The Pay Equity Office only is to advise the Tribunal and the parties if it will be seeking to participate in the hearing with respect to the merits of the preliminary constitutional issue, and if so what position it will be taking;

(c) Should the Pay Equity Office indicate that it will seek to participate on the basis outlined immediately above, ONTC and the Respondent Union are directed to advise the Tribunal by May 24, 2002 of their position with respect to that participation; and

(d) The parties and the Office are directed to be prepared to provide oral submissions in support of their positions at the outset of the hearing scheduled for June 13, 2002.

Dated at Toronto this 10^th^ day of May 2002.

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Mary Anne McKellar, Vice-Chair

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Catherine Bickley, Member

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Margaret Kvetan, Member