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.6) (February, 2 2004) 0737-02 (P.E.H.T.)
decision of the tribunal, FEBRUARY 2, 2004
Introduction
General Health Services o/a Circle of Life Health Services (“Circle of Life”) objected to the Order of a Review Officer dated February 7, 2002 (“the Order”) directing Toronto East General Hospital (“the Hospital”) to amend its non-union pay equity plan to encompass the female job classes that performed services for the Circle of Life clients. Circle of Life took the position that it, and not the Hospital, was the employer of persons in these job classes, and furthermore, that the positions comprising the class(es) were designated as casual and could be excluded from receiving compensation adjustments under the Pay Equity Act (“the Act”) pursuant to sections 8(3) and 8(4) of the Act.
Circle of Life proposed that the Tribunal hear and determine the issue of whether the positions comprising the job class(es) were casual prior to addressing the issue of whether the Hospital or Circle of Life is the employer. The Tribunal agreed to proceed in this fashion, and a hearing into this question was convened on November 25 and 27, 2002.
By decision dated February 13, 2003, the Tribunal determined that positions comprising the job class(es) that performed services for Circle of Life cannot be designated as casual pursuant to sections 8(3) and 8(4) of the Act. As a consequence, the Tribunal indicated that the matter would be re-listed for hearing for the purpose of addressing the issue of whether the Hospital or Circle of Life was the employer of persons in those positions.
By decision dated April 22, 2003, the Tribunal declined to reconsider its February 13, 2003 decision.
Circle of Life commenced a judicial review application in respect of both the Tribunal’s February 13, 2003 decision and the April 22, 2003 decision. That judicial review application is scheduled to be heard on April 6, 2004.
In the meantime, by Notice of Hearing dated September 3, 2003, the Tribunal scheduled the following continuation dates so that the issue of the identity of the employer might be addressed: January 26, 27, 29 and February 4, 2004.
By letters dated January 9, 2004, the Hospital wrote to the Tribunal to advise that they were now in agreement that the Hospital “can be treated for the purposes of the … Act as the employer of the employees of … Circle of Life employed between September 1996 to June 2000”. By letter of the same date, Circle of Life confirmed that it was in agreement with the Tribunal proceeding on the above basis to issue a final decision in this matter without a hearing.
The Issue
- To summarize the situation then, the Tribunal’s February 13, 2003 decision confirmed one of the findings that provided the basis for the Order (whether sections 8(3) and (4) of the Act are applicable). The Hospital and Circle of Life have now abandoned their objection to the second finding that provided the basis of the Order, and have agreed that the Hospital may be regarded as the employer. The only question before the Tribunal then is whether the passage of time or other factors necessitate that the Order be varied.
Analysis
- The Tribunal’s remedial jurisdiction in section 25(2)(d) of the Act provides that it “may confirm, vary or revoke orders of review officers”. The directive portion of the Order reads:
Pursuant to subsection 24(1) of the Act, I order the Toronto East General Hospital to prepare an amended non-union pay equity plan providing pay equity comparisons for the female job classes formerly working at Circle of Life. The effective date of this pay equity plan, and the date that pay equity shall be achieved for job classes in the amended non-union plan, shall be the date that the first Circle of Life employee was hired.
In Order to provide the Toronto East General Hospital adequate time to prepare this plan and make it available to all affected employees, I order, under subsection 24(4), that affected employees be made aware of this plan by March 18, 2002.
I order that the Employer make all reasonable efforts to notify affected employees of the amended pay equity plan. Such efforts include sending notification to employees at their last known address by regular mail, or reaching them by telephone, fax, or e-mail.
As per subsection 24(5), if the terms of this Order have not been met my April 15, 2002, I may refer this matter to the Pay Equity Hearings Tribunal for enforcement.
In the Tribunal’s view, in these circumstances it is appropriate to confirm the substance of the Order, while varying the time lines that are no longer appropriate. It is also appropriate to remove the reference to the possibility of a section 24(5) reference.
The Order was dated February 7, 2002 and directed the Hospital to comply by preparing an amended non-union pay equity plan by March 18, 2002. In our view, while this timeline was not generous, it was appropriate having regard to the fact that the effect of the Order was to find that affected employees should have been included in the Hospital’s non-union pay equity plan from September 1996. But for the fact of the outstanding judicial review application, we would have been inclined to order the Hospital to comply with the Order within thirty days of the date of this decision. Given, however, that the judicial review application has now been perfected and is scheduled for hearing on April 6, 2004, we have determined that an appropriate time line for compliance with the direction contained in the Order is the earlier of the following dates:
Thirty calendar days from the date that the judicial review application is abandoned; or
Thirty calendar days from April 6, 2004.
Disposition
- Subject to the variations noted above, the Order is confirmed.
Dated at Toronto this 2nd day of February, 2004
Mary Anne McKellar, Vice-Chair
Catherine Bickley, Member
Margaret Kvetan, Member