Pay Equity Hearings Tribunal
0746-03 Evelyn McKinley, Applicant v Bucyrus Blades of Canada Limited, Respondent
Before: Mary Ellen Cummings, Chair; Diane Rose and Catherine Bickley, Members
Cite As: Bucyrus Blades of Canada Limited (No.2)(October 14, 2003) (P.E.H.T.)
Decision of the Tribunal, October 14, 2003
- Bucyrus Blades of Canada Limited (“Bucyrus Blades” or “the Applicant”) has brought an application seeking reconsideration of the Tribunal’s August 25, 2003 decision. In that decision, the Tribunal confirmed the Order of a Review Officer requiring the Applicant to undertake steps to establish pay equity, effective January 1, 1994 and pay any necessary adjustments, with interest.
The Tribunal’s discretion to reconsider its decisions
- The Tribunal's power to reconsider its decisions is found in subsection 30(2) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended ("the Act"):
30(2) The Hearings Tribunal may at any time, if it considers it advisable to do so, reconsider a decision or order made by it and vary or revoke the decision or order.
The Tribunal's decisions are intended to be final and parties are not entitled to have decisions reconsidered. The Tribunal possesses and exercises its discretion to reconsider only in compelling and extraordinary circumstances. See Women's College Hospital (No. 2) (1990), 1 P.E.R. 178, at paragraphs 4-7.
In Women's College Hospital (No. 2), above, at paragraph 14, the Tribunal set out the following general test for determining whether it ought to reconsider a final decision: is there some reason to interfere in this case which has already received a decision which was intended to be final? In answering that question, the Tribunal had regard to three factors:
(a) Was there evidence at the time of the hearing that was not presented because it was unavailable to the party asking for reconsideration, and which is likely to make a substantial difference to the outcome of the case?
(b) Since the decision, has there been a change in the circumstances such that the decision should not stand?
(c) Is the decision wrong in law?
The same criteria have been adopted and applied in a number of subsequent decisions of the Tribunal (see Riverdale Hospital (No. 2) (1991), 2 P.E.R. 8; Dare Foods Ltd. (No. 2) (1993), 4 P.E.R. 1; Management Board Secretariat (No. 2) (1994), 5 P.E.R. 10; Hamilton Civic Hospitals (No. 3) (1996), 7 P.E.R. 26; Management Board Secretariat (No. 7) (1999-2000), 10 P.E.R. 1; GL&V Process Equipment (No. 4) (1999-2000), 10 P.E.R. 72; and Helen Henderson (No. 6) (2001-02), 12 P.E.R. 124).
In this case, the Applicant asserts that the Tribunal’s decision is wrong in law. Essentially, the Applicant submits that the Tribunal erred when it concluded that the release signed by Evelyn McKinley upon the termination of her employment did not preclude her from continuing a complaint brought to the Pay Equity Commission and possibly benefiting from the outcome of that complaint.
In its request for reconsideration the Applicant makes the same arguments that were considered and addressed by the Tribunal in its decision of August 25, 2003. As the Tribunal has said on a number of occasions, the Tribunal’s discretion to reconsider its decisions is not exercised to permit a party to re-argue its case.
The only new argument raises concerns about the Tribunal’s reliance on a decision called D’arcy Masius Benton & Bowles Canada Inc.(Harris, July 27, 1993 ES (93-151, affirmed by the Divisional Court, unreported April 11, 1994). At paragraph 27 of the August 25, 2003 decision, the Tribunal wrote:
As the Tribunal set out and adopted in Notre Dame of St. Agatha (above), case law in the context of the Employment Standards Act has held that a release in respect of payments made on termination of employment will not bar a claim for statutory entitlements unless that statute is specifically referred to in the release (see D'Arcy Masius Benton and Bowles Canada Inc. (Harris, July 27, 1993 ES 93-151, affirmed by the Divisional Court, unreported April 11, 1994).
- Counsel for Bucyrus Blades included a copy of the decision in D'Arcy Masius Benton and Bowles Canada Inc. and noted that the document the Referee was considering in that case was not a release but a letter confirming an agreement about the conditions of a termination of employment. Counsel is correct, but the principle remains the same. The Referee concluded:
The agreement between the parties only refers to notice of termination of employment. It does not refer at all to severance pay entitlements and does not recite that the acceptance of the two years notice of termination is in lieu of all entitlements under statute and common law.
- That case supports our view that we should be hesitant to conclude that an employee has given up her rights to claim a statutory entitlement unless the statutory entitlement is specifically addressed in the termination agreement or release. However, at the risk of re-stating the basis for our August 23, 2003 decision, we note that our analysis was not based principally on an interpretation of the release signed by Ms. McKinley. The Tribunal characterized the Order which the Applicant sought to have revoked as one requiring the employer to comply with the Act and demonstrate that as of January 1, 1994, it had established and maintained pay equity. While Ms. McKinley, as a member of a female job class, may have benefited from the employer’s compliance, the Order was not personal to her. At paragraph 23, we wrote:
In our view, the analysis about whether a settlement and release precludes the maintenance of a pay equity complaint is quite different where the Order concerns more than the rights of, or benefits going to, an individual. Put another way, the Tribunal is unlikely to conclude that a release and settlement reached with an individual, even if the release expressly addressed claims under the Act, would relieve the employer from complying with an Order that required it to meet broader pay equity obligations in an establishment. Assuming without deciding that an employee can enter into an agreement with an employer that compromises his or her entitlements under the Act, such an agreement cannot compromise the entitlements of others. Because the Order that the employer seeks to have revoked in this case requires it to establish that it has met its pay equity obligations generally, we would not find that a settlement with Ms. McKinley concerning her pay equity entitlements would relieve the employer of its obligations to establish it complied with section 7(1) of the Act.
In its request for reconsideration, the Applicant disagrees with the Tribunal’s conclusion that the Order was not personal to Ms. McKinley. Again, the Applicant is re-arguing positions that the Tribunal considered and rejected in arriving at its decision.
After carefully reviewing the application for reconsideration, we have concluded that the Applicant has provided no basis on which the Tribunal should exercise our discretion. The application for reconsideration is dismissed.
Dated at Toronto, Ontario this 14th day of October, 2003.
Mary Ellen Cummings, Chair
Diane Rose
Catherine Bickley