PAY EQUITY HEARINGS TRIBUNAL
0739-02 Pay Equity Office, Applicant v. Regesh Family & Child Services, Tammy Mercer, Kelly Rose-Hurst, Anita Papastergiou, Deborha Ball, Iris Leibner, Charmaine Rice, Sharon Gayle, Peter Hones, Susanna Carvalhais, Tom Jones, Ana Paula Ribeiro, Laura D’Orazio, Sheri Da Silva
Before: Mary Ellen Cummings, Chair and Members Margaret Kvetan and Pauline R. Seville
Cite as: Regesh Family & Child Services (Pay Equity Office) (July 8, 2002) 0739-02 (P.E.H.T.)
Decision of the Tribunal, July 8, 2002
1On April 25, 2002, the Pay Equity Office (the Office) referred this matter to the Tribunal in accordance with subsection 24(5.1) of the Pay Equity Act R.S.O. 1990, c. P-7 (the Act).
2The Office alleges that Regesh Family and Child Services (“Regesh”) has not complied with an Order of a Review Officer, dated August 12, 2001. The Order requires Regesh to pay out adjustments related to its pay equity plan as required by subsection 21.22(2) of the Act to female job classes that had not achieved pay equity. Regesh was ordered to pay out adjustments based on the 1% of the previous year’s payroll for the years 1994 to 1999. A compliance date of October 15, 2001 was set by the Order.
3Regesh responded on May 17, 2002. At paragraph 2 of its Response, Regesh wrote:
The Respondent submits that Regesh does not have the ability to pay the amounts outstanding because the organization did not receive any funding from any government source to provide for those payments.
4Based on that pleading, the Tribunal can conclude that Regesh does not dispute that it has not complied with the Order of the Review Officer.
5The Response goes on to challenge the appropriateness of Regesh being included within the broader public sector for the purposes of the Act, with the effect that it is obliged to comply with the proxy provisions of the Act:
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” under the Pay Equity Act 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, or any other means, Regesh does not have the ability to make pay equity adjustments.
6As remedies, Regesh seeks the following:
An Order quashing the Order dated August 21, 2001;
In the alternative, a Declaration that the Respondent can defer making pay equity payments until government funding is received;
Such other relief as the Respondent may request and the Tribunal deem appropriate.
7On May 30, 2002, the Office filed a Reply. That Reply raises a number of concerns about the Response that the panel also shares.
8It is not at all clear to the Tribunal that a Respondent in a referral for compliance can seek independent relief. Typically, parties who seek to challenge the merits of the Order are required to file an Application. In accordance with the Tribunal’s practice and subsections 24(6) and 25(1.1) if a party to an Order files an Application and seeks a hearing with respect to the merits, the Tribunal does not proceed with the compliance referral.
9But the Tribunal has an even more significant concern in this case. Regesh filed a previous Application (PE 0735-01) and by decision dated January 22, 2002, this same panel of the Tribunal raised doubts that Regesh had pleaded a prima facie or arguable case for the remedies sought. The paragraphs in the pleadings that caused the Tribunal concern are identical to those pleaded in the Response in the present case at paragraphs 14, 15 and 16 above.
10In its Response to this Application, Regesh has sought one of the same remedies sought in the earlier Application, that is, the quashing of the Order.
11The Tribunal set out its concerns with those pleadings and remedial request in some detail in the January 22, 2002 decision and provided Regesh with an opportunity to make submissions in response. Instead of making submissions, Regesh withdrew its Application.
12The panel is troubled that Regesh has pleaded the same material facts and sought the same remedy without addressing any of the concerns identified by the panel in the January 22, 2002 decision. We are disturbed by the appearance that Regesh is simply stalling these proceedings. It has admitted that it has not complied with the Order. It has admitted that it is a public sector employer required to comply with the proxy provisions.
13However, Regesh does not think that the Act should require it to comply, and it does not have the money to make the adjustments. Although those points are of significance to Regesh, there appears to be no basis on which this Tribunal, which is bound to interpret and apply the Act, can issue any remedy which addresses those concerns.
14In summary, there appears to be no reason to convene an oral hearing. Unless Regesh can provide some foundation for the Tribunal to convene a hearing, the panel will issue a decision determining that Regesh has not complied with the Order, based on its own admission.
15If Regesh wishes to make submissions they must be served on the other parties and filed with the Tribunal by no later than July 19, 2002. If Regesh makes no submission, the Tribunal will make an order directing compliance with the Review Officer’s Order of August 12, 2001.
Dated at Toronto this 8th day of July, 2002
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Mary Ellen Cummings, Chair
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Margaret Kvetan, Member
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Pauline R. Seville, Member