PAY EQUITY HEARINGS TRIBUNAL
0734-01 Ontario Northland Transportation Commission, Applicant v. Ontario
Northland Employees Independent Union, Respondents
Appearances: Brett Christen, Greg Stuart and Patricia Kelly for the Applicant; John Lang,
Brian Stevens and Debbie Graham for Ontario Northland Employees
Independent Union; Senka Dukovich and Ann Peers for the Pay Equity Office
Before: Mary Anne McKellar, Vice-Chair; Margaret Kvetan and Catherine Bickley, Members
Cite as: Ontario Northland Transportation Commission (June 17, 2002) 0734-01
(P.E.H.T.)
DECISION OF THE TRIBUNAL, JUNE 17, 2002
This is an Application by the Ontario Northland Transportation Commission (“ONTC”) objecting to a Review Officer’s Order dated November 23, 2001 (“the Order”), on the grounds, inter alia, that the Pay Equity Act, R.S.O. 1990, c. P.7, as amended, (“the Act”) is inapplicable to ONTC because the latter is a federal undertaking.
This decision deals with two issues:
(1) the standing of the Pay Equity Office to participate in the hearing; and
(2) the constitutional applicability of the Act to the ONTC.
STANDING OF THE PAY EQUITY OFFICE
By decision dated May 10, 2002, the Tribunal noted that additional submissions from ONTC appeared to frame the issue as a challenge to the Review Officer’s jurisdiction to make the Order. The Tribunal also noted that the question of the constitutional applicability of the Act to ONTC did not appear to have been canvassed by the Review Officer, and sought the parties’ submissions with respect to both the Review Officer’s jurisdiction to address the question of the constitutional applicability of the Act, and the Tribunal’s jurisdiction to deal with that issue in circumstances where the Review Officer had not addressed it. The parties were directed to provide the Tribunal with submissions with respect to those two issues. In addition, the Pay Equity Office was provided with notice of the Application and requested to advise the Tribunal if it intended to seek to participate in the hearing.
On the basis of the submissions filed pursuant to the Tribunal’s direction in its decision dated May 10, 2002, it was clear that neither the parties nor the Pay Equity Office disputed that:
(i) the Review Officer had jurisdiction to address the question of the constitutional applicability of the Act to ONTC; and
(ii) although the Review Officer had not addressed that issue, having regard to the fact that it appeared to raise a question of law rather than fact, it was appropriate for the Tribunal to decide it, rather than referring the matter back to the Review Officer for a determination.
The Pay Equity Office also advised the Tribunal and the parties that it would be seeking to make submissions with respect to the merits of the constitutional issue. ONTC wrote to the Tribunal objecting to the Pay Equity Office participating on this basis. By letter dated June 10, 2002, the Tribunal advised the parties and the Pay Equity Office that this issue would be addressed at the outset of the hearing scheduled for June 13, 2002.
At the commencement of the hearing on June 13, 2002, counsel for the Respondent advised that he would be supporting the Pay Equity Office’s request for standing. At the conclusion of the submissions of the Pay Equity Office and the parties, the Tribunal issued the following oral ruling:
We are not persuaded that the Pay Equity Office is entitled by law to be a party to this proceeding, nor that there is any other basis for granting the Pay Equity Office standing in this proceeding. Our written reasons for this ruling will follow.
Section 32(1)(d) of the Act specifies that anyone “entitled by law” is party to a proceeding before the Tribunal. The question of whether the Pay Equity Office is entitled by law to participate as a party is dependent on a determination of whether it has a direct and substantial interest in the outcome of the proceeding. The Tribunal has afforded the Pay Equity Office standing on this basis for the purpose of addressing whether it possessed jurisdiction to issue an order under subsection 24(3) of the Act in the absence of a complaint having been made under section 22 of the Act. See Humber/Confederation CAAT (No.1) (1999), 9 P.E.R. 45 (“Humber”). On the basis of Humber, the Pay Equity Office argues that it should be granted standing in this Application because a question also arises as to the Review Officer’s jurisdiction to make the Order. In addition, the Pay Equity Office submits that the Application raises important issues of broad public importance, and that its participation would be of assistance to the Tribunal.
In the Tribunal’s view, although it is possible to characterize both this Application and the one considered in Humber as raising issues with respect to the Review Officer’s jurisdiction to make an order, there are significant distinctions between the two situations. Humber raised an issue with respect to the scope of the jurisdiction of the Pay Equity Office under the Act; it did not challenge the applicability of the Act itself. By contrast, in this case, the jurisdictional question does not relate uniquely to the jurisdiction or institutional competence of the Pay Equity Office, but also extends to the jurisdiction of the Tribunal to apply the Act to ONTC. Any question about the jurisdiction of the Pay Equity Office and the Tribunal is necessarily ancillary to the question of the constitutional applicability of the Act to ONTC. The Act either applies to ONTC or it does not, but the Pay Equity Office has no direct legal interest in advocating for one of those outcomes in preference to another. Insofar as the Pay Equity Office suggested that its participation with respect to this issue might be helpful to the Tribunal, the Tribunal notes that the role of advocating for the constitutional applicability of legislation is customarily assumed by the relevant Attorney General. The Attorneys General of both Ontario and Canada received Notice of the Constitutional Question at issue in this case and declined to exercise their right to participate in this proceeding.
CONSTITUTIONAL APPLICABILITY OF THE ACT TO ONTC
The parties agreed that paragraphs 3 to 6 inclusive of ONTC’s submissions to the Tribunal dated March 8, 2002, comprise the relevant constitutional facts. Those paragraphs read as follows:
The General Office Clerks are employed almost exclusively in O.N. Tel Inc., a telecommunications undertaking operated by ONTC, and in ONTC’s railway operations. These operations may be described as follows.
O.N. Telcom is a full service telecommunications carrier that provides local and, significantly, long distance (interprovincial and international) telephone services to customers in northeastern Ontario over a 200,000 square kilometre area. In addition to local and long distance telephone services, O.N. Telcom provides private line voice and data services, advanced network services, e-business services, internet services, and cellular telephone services. O.N. Telcom, which operates as a fully integrated part of ONTC, is registered by the CRTC.
ONTC, directly and through its wholly-owned subsidiary Nipissing Central Railway Company, owns, operates and maintains a rail network of approximately 700 miles in northeastern Ontario and northwestern Quebec and provides freight, passenger and tour train services over various portions of its rail network. A portion of the ONTC’s track extends from Englehart, Ontario across the Ontario/Quebec border to Rouyn-Noranda in Quebec.
The ONTC’s freight services operate over this portion of track on a regular and continuous basis into the Province of Quebec, where a large Noranda mining operation is located. Typically, there are six freight trains per week from Englehart, Ontario to Rouyn-Noranda, Quebec and six freight trains per week from Rouyn-Noranda to Englehart. The trains from Englehart east to Rouyn-Noranda typically depart at 8:15 in the morning arriving at 11:00 a.m. whereas the trains from Rouyn-Noranda to Englehart depart at 4:00 p.m arriving in Englehart at 6:15 p.m.
Upon being advised that the parties had agreed to the above statement of constitutional facts, the Tribunal made the following oral ruling:
Based upon the parties’ Agreed Statement of Fact, the Tribunal is of the view that ONTC is a federal undertaking such that the Pay Equity Act, R.S.O. 1990, c. P.7 does not apply to it. The Review Officer’s Order dated November 23, 2001 is hereby rescinded.
Dated at Toronto this 17th day of June 2002.