Town of Newmarket v. Stephen Faudemer and Dawn Chambers, 2003 CanLII 57512

Pay Equity Hearings Tribunal

0742-02 Town of Newmarket, Applicant v. Stephen Faudemer and Dawn Chambers, Respondents

Before: Patricia E. DeGuire, Vice-Chair; Catherine Bickley and Diane Rose, Members

Cite as: Town of Newmarket (No. 2) (December 3, 2003) 0742-02 (P.E.H.T.)

INTERIM decision of the tribunal, December 3, 2003.

INTRODUCTION

1These are the Tribunal’s Reasons for its Interim Decision concerning the Applicant’s opposition to the Tribunal’s decision to deal with two preliminary issues by written hearing. Specifically, the two preliminary issues raised by the Applicant concern the procedure of the hearing on the merits of this case. The Respondents disagree with the Applicant’s opposition.

BACKGROUND

2By a handwritten document, captioned Joint Request for Adjournment, dated September 17, 2003, the parties requested that the Tribunal adjourn this matter sine die. The Tribunal granted the adjournment in its decision dated September 22, 2003. (See Town of Newmarket (No. 1) (September 22, 2003) 0742-02 (P.E.H.T.), unreported).

3By letter dated September 23, 2003, the Respondent Faudemer asked the Tribunal to re-list the case for the hearing on the merits.

4In its letter dated September 24, 2003, the Applicant informed the Tribunal that it intended to resurrect the “two preliminary objections” it had raised in its letter dated September 15, 2003. To that end, the Applicant proposed that a day be set aside to deal with those two preliminary issues. Those issues are stated later in the section captioned “Analysis.”

5By letter dated October 1, 2003, the Tribunal informed the parties that it would deal with the Applicant’s “preliminary objections”, by written hearing. It directed the Applicant, the moving party, to file and serve Motion Records, Factum, and Book of Authorities by December 11, 2003. It directed the Respondents to file and serve their Responses by December 22, 2003 and any Reply had to be filed and served by December 29, 2003.

6By letter dated October 2, 2003, the Applicant objected to the Tribunal’s decision to deal with its two preliminary issues by written hearing. The Respondents disagree with the Applicant’s opposition.

ISSUE

7Is it appropriate, in the circumstance, to hold a written hearing to deal with the Applicant’s two preliminary issues?

DECISION

8Yes. The Tribunal is satisfied that the Applicant has not raised any good reason for not holding a written hearing. Alternatively, the preliminary issues are procedural in scope. The Tribunal will deal with the two preliminary issues by written submissions.

POSITION OF THE PARTIES

THE APPLICANT’S POSITION

9In its letter dated October 2, 2003, the Applicant argues that its two preliminary issues are jurisdictional issues. The Tribunal will not deal substantively with the two preliminary issues in this decision. However, it is helpful to reproduce the salient parts of the Applicant’s preliminary issues. In its September 15, 2003 letter to the Respondents, the Applicant states:

The Respondents filed their Complaints with the Pay Equity Commission at a time when they were not employees of the Applicant. As a result, the Applicant submits that the Complaint was and is outside the jurisdiction of the Commission and the Tribunal.

As indicated in a letter from the Registrar dated September 12, the Tribunal is expecting the Applicant to proceed first in the hearing on this matter. The Applicant is seeking a ruling that the Respondents be required to present their case first, followed by the Applicant.

The rule in civil and administrative matters is whoever asserts the proposition bears the burden of proving it. This rule has often been stated as ‘he that alleges must prove’.

10The Applicant argues that the first issue “goes to the heart of the Tribunal’s jurisdiction to deal with this entire matter.” The basis of the Applicant’s issue is that the “Complainants…were not employees of the Town” when they filed the Complaint with the Pay Equity Commission (“Commission”). Further, it submits that this issue raises “novel issues regarding the interpretation of numerous sections of the [Pay Equity Act, R.S.O. 1990, c.P.7, as amended (the “Act”)], the nature of the complaint and objection process established by the Act, and the jurisdiction of both the Pay Equity Hearings Tribunal and the Pay Equity Commission.”

11The Applicant argues that the second issue “raises questions as to the proper order of proceedings and onus of proof should the hearing proceed.” The Applicant submits that a misapplication of the onus can cause the panel to lose jurisdiction. Finally, the Applicant submits that paragraph 5.1(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”) requires an oral hearing.

THE RESPONDENTS’ POSITION

Stephen Faudemer

12Mr. Faudemer submits that a written hearing will be “much more direct and factual…and much more convenient for the Respondents.” He states that he had submitted a written response to the Applicant’s preliminary issues and asks the Tribunal accept it for this proceeding.

Dawn Andrews

13By facsimile dated October 15, 2003, Ms Andrews writes: “I am in complete agreement with Mr. Faudemer regarding a paper hearing as opposed to an oral hearing.”

ANALYSIS

THE LAW

14The Applicant argues that according to paragraph 5.1(2) of the SPPA, an oral hearing should be held in this instance.

15It is necessary to consider the Applicant’s arguments within the context of the specific statutory provisions and the Tribunal’s Rules of Practice (November 2002).

16Section 5.1 of the SPPA states as follows:

s. 5.1(1) A tribunal whose rules under section 25.1 deal with written hearings may hold a written hearing in a proceeding.

(2) The tribunal shall not hold a written hearing if a party satisfies the tribunal that there is good reason for not doing so.

(2.1) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters.

17The Tribunal’s Rules of Practice, made under section 25.1 of the SPPA, provides the Tribunal with wide discretion in the conduct of its proceedings. Specifically, Rules 68 and 69 state as follows:

68. The Tribunal may conduct the part of the proceeding where it determines procedural issues as a written hearing or as an electronic hearing.

69. The Tribunal may conduct all or any other part(s) of the proceeding as a written hearing where it considers it appropriate in the circumstances. In determining appropriateness, the Tribunal will consider whether any party asserts a good reason for not holding a written hearing.

18Essentially, reading section 5.1, Rules 68 and 69 together, the Tribunal should determine, (a) whether any party asserts a good reason not to hold a written hearing; or (b) if the matters are procedural in scope. The questions to be considered, therefore, are whether the Applicant asserts a good reason for not holding a written hearing; or whether the issues raised are procedural in scope. If the Tribunal finds no good reason for holding a written hearing or if the issues are procedural in scope, the Tribunal may exercise its discretion to hold a written hearing.

THE APPLICANT’S OPPOSITION AND REASONS

19As noted above, the Applicant characterises the two preliminary issues as jurisdictional issues. Nonetheless, both are procedural in nature.

The First Issue

20Specifically, the Applicant asserts that the “Complainants…were not employees of the Town” when they filed the Complaint with the Commission. It argues that this “goes to the heart of the Tribunal’s jurisdiction to deal with this entire matter,” and that this question raises novel issues. The Tribunal disagrees.

21The question about who is an “employee” within the purview of subsection 22 (1) of the Act was addressed in Peterborough (Clow) (No.2) (1995) 6 P.E.R. 140. In that case, as in this instant matter, the respondent, the City of Peterborough, had argued that the Tribunal had no jurisdiction to consider the applicant’s subsection 9(2) complaint. Its ground for the challenge was that the applicant was not an employee within the meaning of subsection 22(1) when the complaint was filed with the Commission.

22In its reasons, the Tribunal considered the result if such a narrow interpretation were to be ascribed to the term employee within the purview of subsection 22(1). It states at para 32:

This is precisely the sort of complaint that Ms Clow was raising after finding out she no longer had a job at the City. When we consider that the purpose of ss. 22(1) is to set out who is entitled to bring complaints that the Act has been contravened to the attention of the Commission, and that a fundamental right under the Act is set out in s. 9(2), it is entirely consistent with the approach adopted above to interpret and apply the word “employee” in a manner which gives effect to the provisions of the Act.

23Essentially, the Tribunal’s reason in paragraph 32 is that a narrow interpretation of the term “employee” would take away the fundamental right designed to encourage and protect complainants in the pursuit of their rights without fear of reprisal for doing so. That decision is not binding, but it deals squarely with the challenge the Applicant raises here.

24In addition, there is no factual dispute before the Tribunal about the status of the Respondents when they filed their pay equity complaint. Whether the Respondents fall within the rubric of subsection 22(1) is an exercise in interpreting the Act. Arguments with respect to statutory interpretation may be made adequately and effectively through written submissions.

25Should the Tribunal require further information, it can, in its discretion, request further submissions from the parties.

26In sum, the Tribunal is not persuaded that there is any good reason for not holding a written hearing. This issue is not novel. This is not to say that automatically, a novel issue would result in an oral hearing. In addition, this is a procedural issue. On either ground, the Applicant’s opposition fails.

The Second Issue

27The Applicant argues that a hearing before the Tribunal is de novo as opposed to an appeal from the Review Officer’s Order. Accordingly, in a hearing the Tribunal deals with the original issue filed in the pay equity complaint. Therefore, the burden of proof remains with the Respondents.

28In the instant matter, the Applicant has brought this Application before the Tribunal, challenging the Review Officer’s Order. The Application does not challenge the Respondents’ initial complaint to the Pay Equity Commission. Argument concerning whether the order of proceedings should in this case deviate from the normal order may be made effectively through written submissions.

29The Tribunal is satisfied that the Applicant has not provided any good reason for it not to deal with the second preliminary issue by written hearing. As Macaulay states, who ought to present its case first in an administrative proceeding is a matter of logic, not a legal rule: (Practice and Procedure Before Administrative Tribunals (Toronto: Carswell, 2001), Vol. 2 17.2(b)). It is procedural and not substantive.

30It is appropriate to note that the Tribunal had answered the question about who should proceed first earlier. By letter dated September 8, 2003, the Applicant had asked the Tribunal to confirm that the Respondents would lead off in the hearing. In its letter dated September 12, 2003, the Tribunal informed the parties that because the Applicant “initiated this Application” to challenging a Review Officer’s Order dated October 4, 2002, it must present its case first.

CONCLUSION

31The Tribunal is satisfied that it is appropriate to deal with the Applicant’s preliminary matters by written hearing. The Tribunal finds that the Applicant has not satisfied it that there is good reason for not holding a written hearing. Besides, both preliminary issues deal with procedural matters.

32As directed in the Registrar’s letter dated October 1, 2003, the Applicant must file and serve its Motion Record, Factum and Book of Authorities by December 11, 2003. The Respondents must file and serve their Responses by December 22, 2003. Any reply must be filed and served by December 29, 2003.

33The determination about the form of dealing with the preliminary issues had no bearing on the filing and serving of the motion material. Therefore, the Tribunal expects the parties to meet those timelines: the Tribunal is not inclined to grant an extension.

34As directed in the Registrar’s letter dated November 5, 2003, the hearing on the merits will be held on March 9 and 10, 2004 at 400 University Avenue, 7th Floor, Toronto, commencing at 10:00 a.m.