General Health Services o/a Circle of Life Health Services v. Toronto East General Hospital, 2003 CanLII 57505

Pay equity hearings tribunaL

0737-02 General Health Services o/a Circle of Life Health Services, Applicant v. Toronto East General Hospital, Collin Buchanan, Basil Chinenye, Roxanne Edwards, Respondents

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

Cite as: Circle of Life Health Services (No.4) (April 22, 2003) 0737-02 (P.E.H.T.)

decision of the tribunal, APRIL 22, 2003

INTRODUCTION

1. This decision deals with the Applicant’s request for reconsideration of the Tribunal’s decision dated February 13, 2003 (“the Decision”).

DECISION

2. The Tribunal declines to reconsider the Decision. Its reasons for this determination are set out below.

THE TRIBUNAL’S DISCRETION TO RECONSIDER

3. 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.

4. The Tribunal’s decisions are intended to be final. Parties are not entitled as of right 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.

5. In Women’s College Hospital (No. 2), supra, at Paragraph 14, the Tribunal articulated 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, which mirror those considered by the Ontario Labour Relations Board, which possesses a power of reconsideration virtually identical to that of the Tribunal. See subsection 114(1) of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended:

i. 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?

ii. Since the decision, has there been a change in the circumstances such that the decision should not stand?

iii. Is the decision wrong in law?

6. The above statement of the circumstances in which reconsideration will be granted has 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.

7. In GL&V Process Equipment (No.4), supra, the Tribunal referred to the factors enumerated in Paragraph 5 above, and then made the following comment at Paragraph 8:

8. Generally speaking, whenever the Tribunal issues a decision, one party is pleased with the outcome, and one party is not. In order to have the decision reconsidered, however, the party that does not like the outcome must show that the facts had not crystallized (i.e. could not have been ascertained) at the time of the hearing (factors (i) and (ii) above), or must show that the decision is wrong in law (factor (iii) above).

9. In Helen Henderson (No. 6), supra, the Tribunal noted at paragraphs 23 and 26, that the Tribunal will not exercise its discretion to reconsider merely to provide a party with an opportunity to re-argue its case. With this framework in mind, we now turn to examine the Decision briefly, and the bases on which the Applicants assert that it should be reconsidered.

THE DECISION

9. In the Decision, the Tribunal determined on a preliminary basis that the work performed by the respondent employees and other health care aides dispatched by General Health Care Services Inc., o/a Circle of Life (“Circle of Life”) was not casual work pursuant to subsections 8(3) and (4) of the Act. In reaching this conclusion, the Tribunal confirmed a similar finding made by the Review Officer in her Order dated February 7, 2002 (“the Order”). The Order also found that Toronto East General Hospital (“the Hospital”) is the employer of the respondent employees and other health care aides dispatched by Circle of Life. Both Circle of Life and the Hospital also object to this aspect of the Order, but proposed that the “casual issue” be decided first.

10. In determining the “casual issue”, the Tribunal set out three possible interpretations of the language used in subsections 8(3) and 8(4) of the Act. One of those was the interpretation advanced by Circle of Life. The Tribunal rejected this interpretation and provided reasons for doing so in paragraphs 24 and 30 of the Decision. Another of the possible interpretations considered by the Tribunal was set out and rejected in paragraphs 28 and 29 of the Decision, and it appeared to be the interpretation advanced by the Respondent employee, Collin Buchanan, as noted in paragraph 26 of the Decision. In paragraphs 31 and 32 of the Decision, the Tribunal set out the third possible interpretation of the statutory provisions, and the Tribunal’s reasons for preferring that interpretation.

ANALYSIS OF THE RECONSIDERATION REQUEST

11. Circle of Life takes the position that the Decision is wrong in law. It has not provided the Tribunal with any case law, and in particular has not provided any case law to clarify what constitutes an “error of law” in the reconsideration context. Furthermore, Circle of Life’s submissions do not suggest that the Decision deviates from the policy articulated by the Tribunal in any earlier case law, which is not surprising since the Tribunal has not previously had occasion to consider subsections 8(3) and (4) of the Act. Circle of Life also does not submit that the Decision is inconsistent with any binding judicial authority, or is inconsistent with some other provision of the Act. Finally, Circle of Life does not argue that the alleged legal error relates to a natural justice or fairness concern. In cases where such arguments have been advanced, they have on occasion persuaded this Tribunal or the Ontario Labour Relations Board to reconsider a final decision. The Tribunal’s understanding is that permitting a decision to stand in such circumstances might well constitute an “error of law”. See for example Management Board Secretariat (1994), 5 P.E.R. 10; and Columbia Metal Rolling Mills Ltd., [1966] OLRB Rep. Mar. 924.

12. By contrast to the situations described above, in this request Circle of Life simply disagrees with the Tribunal’s reasons for rejecting its proposed interpretation of subsections 8(3) and (4) of the Act in paragraphs 24 and 30 of the Decision, and for preferring the interpretation set out in paragraphs 31 and 32 of the Decision. Circle of Life makes a number of assertions with respect to the difficulties it feels are occasioned by the Tribunal’s interpretations of the statutory provisions, and makes a number of further submissions with respect to why it feels the Tribunal’s critiques of the interpretation advanced by Circle of Life are misguided. Circle of Life is addressing the identical legal issue that was before the Tribunal, where there were clearly three potential interpretations of subsections 8(3) and (4) being considered: the one advanced by Circle of Life; the one advanced by the Respondent Collin Buchanan; and the one articulated in the Order and essentially adopted by the Tribunal. Circle of Life is attempting to re-argue its case. As the Tribunal noted in Helen Henderson (No.6) (2001-02), at paragraphs 23 and 26: “The Tribunal’s discretion to reconsider is not exercised to permit a party to re-argue its case.” This is a sufficient basis on which to deny the request for reconsideration.

13. In addition, it is not at all clear to the Tribunal that this is the appropriate juncture at which to seek to have the Decision reconsidered. As the Tribunal has noted, it agreed to determine the “casual issue” on a preliminary basis, on the understanding that should the health care aides be found to perform casual work within the meaning of subsections 8(3) and 8(4) of the Act, the “employer” issue would become moot. Had Circle of Life’s position prevailed on the “casual issue”, therefore, the Decision would have finally determined all relevant issues in dispute between the parties. The consequence of the Decision’s rejection of Circle of Life’s position and its confirmation of the Order with respect to the “casual issue” is that the “employer issue” is very much a live issue before the Tribunal. At this point, the Order has found the Hospital (and not Circle of Life) to be the employer of the Respondent employees and other health care aides dispatched by Circle of Life. Until such time as the Tribunal determines the identity of the employer, the Decision has no impact whatsoever on Circle of Life, and will only have an impact at that point should Circle of Life be found to be employer. Consequently, a request by Circle of Life for reconsideration of the Decision seems premature at this time, although the Tribunal can appreciate that the request may have been made out of an abundance of caution having regard to the Tribunal’s new Rules of Practice which impose time limits on requests for reconsideration. In any event, the prematurity of the request is also a sufficient basis on which to deny the request for reconsideration.

ORDER

14. In all the circumstances, the request for reconsideration is denied.

Dated at Toronto this 22nd day of April, 2003

Mary Anne McKellar, Vice-Chair

Catherine Bickley, Member

Margaret Kvetan, Member