Pay equity hearings tribunaL
0765-04 Caressant Care Nursing and Retirement Homes Limited–Marmora Retirement Home, Applicant v. Service Employees International Union, Respondent
Before: Mary Ellen Cummings, Chair; Pauline R. Seville and Margaret Kvetan, Members
Cite As: Caressant Care Nursing and Retirement Homes Limited-Marmora Retirement Home (May 18, 2004) 0765-04 (P.E.H.T.)
DECISION OF THE TRIBUNAL, May 18, 2004
Caressant Care Nursing and Retirement Homes Limited-Marmora Retirement Home (“the Employer”) has brought an Application with respect to a Review Officer’s Order dated February 25, 2004. The Order requires the Employer to negotiate a pay equity plan with the Service Employees International Union (“the Union”) for female job classes working at the retirement home who fall within the bargaining unit, using the proxy method of comparison set out in Part III.2 of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”). It is the Officer’s understanding that the Employer asserted that because of the effect of Regulation 37/02 to the Act, it was not required to apply the proxy provisions to its retirement home employees, but only to its nursing home employees. Put simply the Employer has taken the position that Marmora Retirement Home is not a public sector employer, and therefore, not subject to the proxy provisions of the Act.
The Panel has reviewed both the Application and the Response of the Union and is of the view that some further revision and thought is required before this matter can proceed to hearing.
In its Application, the Employer alleges at paragraphs 8, 9 and 10 that the Review Officer acted in a manner that created a reasonable apprehension of bias. In a number of decisions, most recently Royal Crest Lifecare Group, (2001) 11 P.E.R. 36, the Tribunal has held that it will not inquire into the conduct of Review Officers. In Royal Crest Lifecare Group, the panel said:
The Tribunal, as early as its first decision in Cybermedix [(1990) 1 P.E.R. 41], signalled that since hearings before the Tribunal are de novo, it is inappropriate and unnecessary to hear evidence about the process or conduct of the Pay Equity Office. A de novo hearing gives the workplace parties a full opportunity to present all evidence and make full submissions on the issues that were placed before the Review Officer. Parties are not limited to the submissions or information they put before the Review Officer. And the Tribunal neither receives nor reviews the information that the Review Officer considered, unless one of the workplace parties seeks to introduce it.
The Tribunal has consistently held that a de novo hearing provides a complete remedy to any frailties in the process undertaken by Review Officers, with the result that there is nothing to be gained by an inquiry into alleged inadequacies in the investigation.
As counsel for the Pay Equity Office outlined, the very structure of the Act and the description of the circumstances in which the Tribunal will hold a hearing and the remedies it can award, all point to a scheme that envisions the Tribunal focusing on the substantive disputes between workplace parties.
The remedial powers in section 25(2) are entirely devoted to addressing substantive issues. The Tribunal can order reinstatement of employees; adjust compensation; determine if a sale of business occurred; order the revision of a pay equity plan; and generally, confirm, vary or revoke the orders made by Officers. Nowhere does the Act give the Tribunal the power to censure the conduct of Review Officers.
Further, as counsel for the Pay Equity Office noted, the Tribunal's jurisdiction to hold a hearing is set out in section 25(1). That provision determines the circumstances in which the Tribunal can hold a hearing. The only subsection potentially relevant to these proceedings is 25(1)(b), which, in turn, requires a consideration of section 24(6). As set out above, section 24(6) envisions that a request for a hearing is made "... with respect to the order".
The Tribunal concludes then, that its jurisdiction to hold a hearing requires that a request for hearing is made "... with respect to the order" and that its remedial powers are pointed towards addressing substantive pay equity issues. That legislative structure influenced the Tribunal in its determination that hearings before it would be de novo. The proceedings should focus only on the substantive pay equity disputes between the parties.
To summarize, the Tribunal has held that de novo hearings before it cure any alleged failing in the Review Services process, an approach which is consistent with the scheme of the Act and the Tribunal’s remedial powers, which all focus on resolving the workplace parties’ underlying pay equity issues, and not on addressing a Review Officer’s conduct. Consequently, paragraphs 8 to 10 of the Application are struck because they raise matters about which the Tribunal will not inquire.
In the Application, the Employer states at paragraph 5 that “the evidence and legal arguments that this Applicant wishes to advance are in no way affected by the positions and evidence that were advanced by any of the Applicants in the Helen Henderson No. 4 decision”. However, the Applicant has not pleaded any material facts about its operations that would form the basis for its evidence. Rule 13 of the Tribunal’s Rules of Practice states that “….no Applicant will be allowed to raise any issue, fact or event which the Tribunal considers was not set out in the Application”. Consequently, if the Applicant wants to adduce evidence about its operations and how they differ from the pattern of facts which led to the Tribunal’s decision in Helen Henderson No. 4, (2001-2002), 12 P.E.R. 45, the Applicant will have to seek to amend its pleadings.
The Applicant seeks to have this hearing deferred until the completion of the judicial review proceedings in Helen Henderson No. 4. However, if as the Applicant asserts, its circumstances are neither factually nor legally similar to those in Helen Henderson No. 4, it is not clear to the Tribunal why the adjudication of this case should be delayed. We note that the Union resists delaying the hearing in this matter. It points out that the judicial review proceeding has been adjourned, revived, and not yet perfected. While the Tribunal agrees that in some circumstances it is appropriate to wait until another proceeding is completed, parties should not have to wait indefinitely, particularly where they have no control over the progress of the other application. At this point, it is not obvious to the panel that the adjudication of this matter should await the judicial review in Helen Henderson No. 4.
In any event, reviewing the Application, it appears that there may be a significant legal issue that could be litigated without regard to the alleged factual and legal differences from Helen Henderson No. 4 and without waiting for the judicial review of Helen Henderson No. 4 to be completed. The Applicant writes at paragraph 6 that Regulation 37/02 “…makes it clear that the Applicant is not a public sector employer and that as such the proxy provisions of the Pay Equity Act do not apply”. The Applicant wants to make full argument about that. It seems to the Tribunal that a determination could be made on that issue, without the need to hear evidence. One possible formulation of the question could be this:
Where a retirement home and a nursing home are operated by a single legal entity, is the effect of Regulation 37/02 that only the nursing home part of the operation is a “public sector employer”?
If the answer is yes, does Regulation 37/02 relieve the employer from meeting the pay equity obligations of a “public sector employer” for the retirement home in the period prior to the effective date of Regulation 37/02?
It is difficult to be certain from the pleadings whether addressing that question would assist the parties, and we seek their submissions. We appreciate that the Applicant has at no point conceded that it is a retirement home and a nursing home operated by a single entity, and that issue may have, at some point, to be litigated.
Turning now to the Response at paragraphs 5 and 54, the Union asserts that “Regulation 37/02 is invalid and ultra vires the Pay Equity Act. Accordingly, it is invalid and of no force and effect.” The Union has not pleaded the basis for its assertion of invalidity, and both the Tribunal and the Employer are entitled to that before this matter proceeds further. The Union may be asserting that the Regulation undermines the Act, or the Union may be asserting that the Regulation is contrary to the Charter. It is well known law that an administrative tribunal such as ours does not have the jurisdiction to strike down legislation because it offends the Charter or the Constitution. We can decline to apply it in the circumstances of a particular case, but lack the jurisdiction to declare it invalid. That broader remedial opportunity is left to superior courts (see, for example, Cuddy Chicks v. Ontario Labour Relations Board, (1991) 1991 CanLII 57 (SCC), 3 O.R.(3d) 128. We are therefore doubtful, that the Tribunal has the ability to strike down a regulation on the basis that it is ultra vires. If the Union seeks that kind of remedy, it should seek it by way of application to the Superior Court. It is important, therefore, to know precisely what the Union wants the Tribunal to do in respect of Regulation 37/02.
It is also not clear to us if the Union raised with the Review Officer its position that the regulation is invalid. Since the Tribunal has required that matters brought before it be first raised at Review Services, the Tribunal may determine that it does not have the jurisdiction to inquire into that issue. Of course, if the Union is seeking a remedy that the Tribunal cannot grant, it matters not whether the issue was raised at Review Services, because the Officer would be similarly unable to grant the remedy. Finally, if the Union is seeking independent relief from the Tribunal in respect of Regulation 37/02, and not just seeking to have the Order upheld, it may be more appropriate for the Union to bring a separate Application.
We note that the Union has asked that the Application be dismissed because it fails to make out a prima facie case. We have addressed certain aspects of that argument, and are seeking the parties’ further submissions. We may yet consider dismissing more aspects of the Application after reviewing the submissions.
The Employer is directed to serve and file its submissions by no later than Friday May 28, 2004. The Union is directed to serve and file its submissions by no later than Friday June 11, 2004. The Employer may reply by Friday June 18, 2004. If the parties agree to another schedule, they need merely advise the Tribunal.
Dated at Toronto, this 18th day of May, 2004
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Mary Ellen Cummings, Chair
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Pauline R. Seville, Member
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Margaret Kvetan, Member