PAY EQUITY HEARINGS TRIBUNAL
0735-01 Regesh Family and Child Services, Applicant v. Tammy Mercer, Kelly Rose-Hurst, Anita Papastergiow, Deborha Ball and A Group of Employees, Respondents
Before: Mary Ellen Cummings, Chair, and Members Pauline R Seville and Margaret Kvetan
Cite as: Regesh Family and Child Services (January 22, 2002) 0735-01 (P.E.H.T.)
DECISION OF THE TRIBUNAL, JANUARY 22, 2002
This is an Application which is said to have been brought with respect to an Order made by a Review Officer on August 21, 2001.
Having reviewed the Application, the Tribunal has some concerns about whether it has made out a prima facie or arguable case for the remedies sought. The Tribunal will set out its concerns, and then seek the submissions of the Applicant before determining whether this Application should be dismissed.
The Tribunal has long exercised its discretion to dismiss an Application that does not plead a prima facie case for the remedy sought. The test the panel applies is set out in Peterborough Firefighters (No. 1) (1991), 2 P.E.R. 86 at paragraphs 6 and 7:
On a motion for dismissal on the basis of failure to make out a prima facie case, a tribunal must decide whether the Applicant has made out a case on the face of the written material filed as the Application. For this purpose, the Applicant is permitted to make its best case by treating everything it has alleged as if it were true. A failure to establish a prima facie case means that even if the Applicant could prove all its allegations, the tribunal could do nothing for it because the facts alleged do not constitute a violation of the relevant statute. If the Applicant's best case does not provide the basis for a remedy, the Application is dismissed; if it would provide a basis for a remedy, however, the assumption of truth is forgotten: the case proceeds to permit the Applicant to prove its allegations and the respondent to respond to them.
An Applicant must make out a set of circumstances which, if proved, the Tribunal can rectify in the manner requested by the Applicant. There are times when the Applicant may make out a case which could be rectified by the Tribunal, but does not provide sufficient information for the respondent to answer the case fully; then the Tribunal might order the Applicant to provide further particulars about the circumstances underlying its claim. But such cases must be distinguished from those in which it is clear on the material filed by the Applicant that the Tribunal could not rectify the circumstances set out by the Applicant in the manner requested; then there is no point in proceeding: hence the authority to dismiss for failure to establish a prima facie case.
The Applicant seeks as a remedy an order quashing the Review Officer’s Order of August 21, 2001 and a declaration that the Applicant is not a public sector employer.
The Order dated August 21, 2001 opens with the words:
There is only one issue in this Order. Can lack of funding be a defense to an employer’s obligation to comply with a pay equity plan or the Act?
On the face of the Order, then, the question of whether the Applicant is a public sector employer was not an issue. Moreover, in its Application, the Applicant pleads that it was found to be a public sector employer pursuant to an Order of a Review Officer issued on April 16, 1999. It appears, then, on the Applicant’s own pleadings, that the issue of whether it is a public sector employer is not an issue that arises out of the August 21, 2001 Order that is the subject of this Application.
But even assuming that the Applicant intended to bring this Application with respect to both the April 16, 1999 Order and the August 21, 2001 Order, elsewhere in the Applicant’s pleadings it acknowledges that for the purposes of the Pay Equity Act it is a public sector employer. The Applicant wrote:
Regesh operates treatment group homes and specialized foster care for emotionally disturbed children. Regesh is licensed under the Child and Family Services Act to operate these residences for children.
Organizations like Regesh are not consistently treated with respect to their status as either public sector or private sector. Under the Pay Equity Act, the fact that Regesh is licenced under the Child and Family Services Act includes Regesh as a public sector employer as set out in the Schedule to the Act. However, for the purposes of, for example, the Public Sector Salary Disclosure Act, the Procurement Policies for the Ontario Public Sector and the Broader Public Sector, and funding, Regesh is considered to be a private sector organization.
Regesh submits that the proxy provisions were not intended to capture private organizations such as itself that do not receive direct funding from a government Ministry.
By virtue of being licenced, Regesh is drawn into the “broader public sector” despite its private nature. Being required to post a pay equity plan and meet obligations under the Pay Equity Act put Regesh in the same position as broader public sector employers, however these other organizations as true “broader public sector” employers received transfer funding from government Ministries, while Regesh did not.
Without transfer funds, or the ability to increase revenue through increased per diem rates, Regesh does not have the ability to make pay equity adjustments. (emphasis added)
In paragraphs 18 and 20, Regesh acknowledges that because it is licensed under the Child and Family Services Act, it is a “public sector employer” for the purposes of the Pay Equity Act, and consequently required to meet the proxy provisions of the Pay Equity Act. Since Regesh has made that factual acknowledgement and the logical legal conclusion that follows, the Tribunal is not able to provide the remedy requested, that is make a finding that the Applicant is not a public sector employer pursuant to the Pay Equity Act.
We understand that the Applicant does not think it fair or consistent that it is considered to be a public sector employer for the purposes of the Pay Equity Act, but the Tribunal does not have a plenary jurisdiction to apply equitable remedies of fairness. The Tribunal is obliged to interpret and apply the Pay Equity Act. As the Applicant has recognized, having regard to the Schedule to the Pay Equity Act which defines which employers are in the “public sector”, entities which operate a children’s residence or provide residential care under a licence issued under section 193(1) of the Child and Family Services Act are included. In accordance with section 21.12, an employer who is a public sector employer is required to use the proxy method of comparison for all the female job classes in its establishment.
Put simply, the Applicant’s admission that it is a public sector employer for the purposes of the Pay Equity Act means that even if the Tribunal accepted everything else it pleaded as true, the Tribunal would not be able to issue the remedy requested. We would not issue a declaration that it is not a “public sector employer”. Therefore it appears to the panel that the Applicant has not pleaded a prima facie case for the remedy.
We turn now to the second remedy requested, that the Tribunal quash the Order issued August 21, 2001. In that Order the Review Officer directed that the Applicant pay out adjustments required under the pay equity plan it posted in April 2000 and under the pay equity plan that would result from proxy comparisons, pursuant to section 21.22. The Applicant pleads at paragraph 3(b):
Regesh does not have the ability to pay the amounts outstanding because the organization did not receive any funding to provide for these payments.
The Tribunal determined in Kensington Village (2000), 11 P.E.R. 1, that the Pay Equity Act had no provisions which permit an employer to avoid or delay the liability to make pay equity adjustments on the basis that it did not have the ability to pay. At paragraphs 20 and 21, the Tribunal said:
As was noted in the Review Officer's Order, there is no provision in the legislation which addresses issues of funding or financial hardship on the part of an employer with obligations under a pay equity plan.
It would have been a simple matter for the legislature to have included language in the statute to explicitly allow for pay equity obligations to be deferred in cases where payment would cause financial hardship to the employer. More specifically, if the legislature had intended to provide that organizations in the broader public sector would not be obligated to make pay equity adjustments unless and until they received annual dedicated funding, it could have included such a provision in Part III.2 of the Act, which deals with the Proxy Method of Comparison.
The consequence of that decision for this Application is that even if the Tribunal were satisfied that the Applicant did not have the ability to pay and was not funded to meet its pay equity obligations, the Tribunal would not be able to issue the remedy requested. The Tribunal would not quash the Review Officer’s Order requiring the Applicant to pay the adjustments required under its posted plan and those required after undertaking proxy comparisons.
In conclusion, it does not appear that the Applicant has pleaded a prima facie case for either of the two remedies it seeks. However, we are mindful that the Tribunal has not had an opportunity to consider any submissions the Applicant would like to make about whether it has pleaded a prima facie case. We would like to receive and consider those submissions before making a final decision about whether or not to dismiss this Application.
The Applicant is directed to file its submissions with the Tribunal by no later than February 8, 2002.
Dated at Toronto this 22nd day of January, 2002.
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Mary Ellen Cummings, Chair
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Pauline R. Seville, Member