Town of Newmarket v. Faudemer and Chambers, 2004 CanLII 60161

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. 3) (February 9, 2004) 0742-02 (P.E.H.T.)

INTERIM decision of the tribunal, feBRUARY 9, 2004.

INTRODUCTION

1. These are the Pay Equity Hearings Tribunal’s (“Tribunal”) Interim Decision and Reasons concerning a motion brought by the Applicant in this matter. The Applicant seeks a determination on two preliminary issues: whether the Tribunal has jurisdiction to adjudicate this matter; and the order of proceeding in this matter, i.e., which party ought to present its case first and who bears the burden of proof.

2. In its Decision dated December 3, 2004, Town of Newmarket (No. 2) (December 3, 2003) 0742-02 (P.E.H.T.), the Tribunal ruled that it was appropriate to conduct this motion as a written hearing. Accordingly, the Tribunal directed the parties to file and serve motion documents and authorities in support of their positions.

BACKGROUND

3. On July 12, 1988, the Applicant posted a pay equity plan. In October 1988, the Applicant created a new position called the “Complex Deck Supervisor” now “Pool Deck Supervisor” position. The Respondents were employed by the Applicant as Pool Deck Supervisors.

4. On March 13, 1990, the Applicant posted a pay equity plan. On December 29, 1994, the Respondents filed a complaint to the Pay Equity Office (“Review Services”) stating that the Applicant had contravened the Pay Equity Act, R.S.O. 1990, c.P .7, as amended (the “Act”). On November 23, 1996, Review Services issued an order against the Applicant. The Respondents, Dawn Chambers and Stephen Faudemer, left the employ of the Applicant on June 21, 1996 and December 9, 1996, respectively. In March 1998, the Applicant posted another pay equity plan. In the fall of 1998, the Respondents filed another complaint with Review Services alleging that they had never been compensated for the changes in their job responsibilities.

5. On October 4, 2002, a Review Officer’s Order (“Order”) found that changes to all job classes in the Aquatic Division had been revised. The Officer found that changes in the responsibilities were documented and confirmed each year from 1991 to 1995. The Applicant had taken action to prepare a new pay equity plan. However, it had not taken any action until 1995 to determine whether there was an impact on the value of the “changed job classes…In the new job, the Pool Deck Supervisor was higher rated than the original job class for the 1990 pay equity plan.”

6. The Officer ordered the Applicant to maintain pay equity for the Pool Deck Supervisor job class by placing it in grade 6 of the salary administrative programme that was in effect September 1, 1991; and that “any and all salary compensation changes should reflect the job rate for grade 6 from September 1991 until December 31, 1995.” Finally, the Officer stipulated that if the Order had not been implemented within 30 days of its receipt, a subsection 24(5) referral to the Tribunal might be made.

7. The Applicant voluntarily brings this Application to the Tribunal requesting a hearing with respect to the Order. Notably, the Applicant filed its Application, before the thirty-day grace period of the Order had expired, according to subsection 24(6) of the Act. Now, the Applicant asserts that the Tribunal has no jurisdiction to hear this matter. So, it has asked the Tribunal to hear two preliminary issues.

ISSUES

8. The questions raised by the Applicant can be stated as follows:

(1) Does the Tribunal have jurisdiction to deal with this “Complaint”?

(2) If the Tribunal has jurisdiction, must the Respondents present their case first? Who bears the onus of proof in this Application?

DECISION

9. The Motion is denied. The Tribunal has jurisdiction to hear this Application. The Applicant must present its case first. It bears the onus of proof.

POSITION OF THE PARTIES

the applicant’s position

ISSUE 1: Does the Tribunal have jurisdiction to deal with this “Complaint?”

10. The Applicant puts forward two grounds for its unique motion. First, it argues that the Respondents were not the Applicant’s employees when they filed the Complaint with Review Services. Second, because of the “limited scope of the application of the Act, only interested parties have status under the legislation to make a Complaint. “Former employees” are not covered by the Act and are not interested parties.” The Applicant relies on subsection 3(1), 15(7), 16(4), 22(1) and 22(2) to support these grounds.

11. The Applicant argues that the term “employee” is not defined in the Act. Section 1 of the Act “contains a specific exclusion” of the term employee; therefore, it has no special meaning. The Applicant argues that the term employee should be given its plain and ordinary meaning, which is, a person who is employed by and works for a company or another person for wages. In addition, the Applicant argues that the “Courts have found the employment relationship does not even extend to not include retired former employees who are in receipt of pension payments [sic].” It cites Re Blais and Blais (1983), 1983 CanLII 1762 (ON HCJ), 43 O.R. (2d) 513 to support its position.

12. The Applicant submits that a broad and liberal interpretation “cannot justify including within the meaning of ‘employee’ persons who are not, in any sense of the word, employees.” To do so, “would be rewriting the Act as opposed to interpreting it.” In the Applicant’s view, in an expansive interpretation of the term employee, the class former employees is precluded. The Applicant argues that it is “clear that underpinning the broad interpretation is a recognition that there still must be some form of ongoing relationship or reasonable expectation of ongoing relationship between the person and the entity considered to be their employer.”

13. The Applicant argues that the Respondents had no “residual relationship” with it when they filed their complaint to Review Services. Citing Canada (Attorney General) v. Rosin, 1990 CanLII 12957 (FCA), [1991] 1 F.C. 391 (C.A.), the Applicant further argues that to be considered an employee requires some form of connection or relationship with the alleged employer. More specifically, the Applicant argues that the Tribunal had faced a similar challenge - about whether it had jurisdiction - in Clow v. Peterborough (City) (No. 2) (1995) 6 P.E.R. 140. The Applicant states that in that case, the Tribunal ruled that the complainant had sufficient employee status to bring the complaint because she had been a seasonal part-time employee for seventeen years and thus, had an “ongoing and residual relationship with the employer”; and that the Act specifically protects seasonal employees.

14. The Applicant asserts that “none of the indicia of employment, even when viewed in a broad and liberal manner,” existed between it and the Respondents at the time they filed the complaint. The Applicant argues that it is “necessary that there be some element of relationship, either actual or residual…. To determine the existence of such a relationship, one must look at…the existence of elements that indicate, in the broad sense, an employment relationship.” The Applicant states that those elements include: “the ‘utilization’ of the person by the alleged employer; the exertion or existence of control over the person; the exchange of benefits between the parties; the receipt of some remuneration by the person; and the reasonable expectation of the parties.”

15. The Applicant argues that the concern raised by the Tribunal in Clow, supra, that to preclude former employees from the interpretation of the term “employee” would prevent a person who was terminated as a reprisal from making a complain under the Act, is “erroneous,” “unreasonable” and “is without merit.” The Applicant’s reasons are: that the Tribunal’s “unreasonable interpretation” does not resolve the “conundrum” the Tribunal referred to in Clow, supra; and that the Act is able to “adequately deal with any circumstances that may arise under this section without resorting to an unreasonable interpretation of the word ‘employee’.” The Applicant asserts that a person whose termination is a result of reprisal, is an employee, “but for a violation of the Act.” And, where the “person” had “never been an employee,” there is protection under section 26 of the Act.

16. The Applicant argues that in other employment legislation in Ontario, there is specific protection for former employees and protection is extended specifically to a broader class of persons. The Applicant cites subsection 1(1) of the Employment Standards Act, S.O. 2000, c.41, as amended, and sections 5 and 32 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, to support its argument. Finally, the Applicant argues that “the lack of language including former employees in the Pay Equity Act, in combination with the inclusion of such language in other employee protection statutes, evidences the legislatures [sic] intent that former employees are not capable of maintaining complaints under the Pay Equity Act.”

The Respondents’ Position

17. The Respondents submit that they filed a complaint with Review Services, which was received on December 29, 1994. Then, they were still the Applicant’s employees. Because of that complaint, a review officer issued an order on November 18, 1996, in which the Applicant was ordered, among other things, “to post and implement a pay equity plan, effective January 1, 1990, for all employees in the establishment, not represented by a bargaining agent…to ensure pay equity is achieved by complying with Section 6 of the Act, and to make pay equity adjustments, where required, retroactive to January 1, 1990.” The Respondents state that the Applicant chose to comply with the November 18, 1996, order and had worked with Review Services to establish a pay equity plan.

18. The Respondents submit that a pay equity plan was posted on March 23, 1998. About that time, they received a letter from Mr. Michael Wiseman, Manager of Human Resources, entitled: “Important Notice to All Former Employees of the Town of Newmarket.” That letter was an invitation to review and to submit comments on the Pay Equity Plan to the Town by June 22, 1998. They responded to that letter on April 9, 1998, “appealing the Plan.” Ultimately, an order was issued: implicitly, the Order that is now impugned.

19. The Respondents submit that the Applicant invited former employees to participate in the pay equity plan process. Therefore, former employees who were opposed to the amended plan, had the right to appeal to Review Services.

20. The Respondents assert:

Simply because an employee files a claim and leaves their place of employment, the case does not cease or close automatically. The claim continues until a resolution is made regarding the case, be it through settlement, issuance of an Order, or through the Tribunal. The original applicants, upon leaving their positions, for whatever reason, do not automatically forfeit their right, as an employee, regarding or issues [sic] that occurred during their time of employment.”

21. The Respondents agree that the Act does not define the term employee. They argue however, it could be inferred that the term employee includes former employees because the definition ascribed to that term by the Ministry of Labour in the Employments Standards Act includes former employees.

22. In addition, the Respondents agree that former employees cannot make a complaint “regarding issues that were recognized in the position occurring after employment ended.” They argue, however, that former employees should have the right to file a complaint if the issue occurred during their employment.

ANALYSIS

Does the Tribunal have jurisdiction over this complaint?

23. First, the Tribunal states that the matter before it is not a complaint but an application. Accordingly, the question ought to be whether the Tribunal has jurisdiction to hear this Application. A person, who makes a request to the Tribunal to hold a hearing, does so by way of an Application. On the other hand, one files a complaint with Review Services complaining that there has been a contravention of the Act.

24. The Tribunal finds that it has jurisdiction to hear this Application because the Applicant has voluntarily, by its Application, requested the Tribunal to hold a hearing. According to sections 23, 24 and 25 of the Act, the Tribunal derives its jurisdiction to hold a hearing by a request from a “complainant,” - subsection 23(4); a review officer – subsection 24(5); or an employer, bargaining agent or a complainant - subsection 25(1). The scope of these provisions will be explained later. At this junction, the Tribunal notes that as the entity who requested a hearing, the Applicant has the right to withdraw its Application: and that would end the discourse about whether the Tribunal has jurisdiction to hold hearing in this matter. Notably, withdrawing the Application does not vitiate the Order.

25. The Applicant has made extensive submissions concerning the scheme of the complaint process under the Act. The Tribunal agrees that it is important to understand the schema of the complaint process because that informs one of the scope of the Tribunal’s jurisdiction to hold hearings concerning Applications. In this Application, it is more important to understand the scheme of the Act’s “Enforcement” mechanism. As noted above, the Tribunal has jurisdiction to hold a hearing as defined by sections 23, 24 and 25 of the Act.

26. What is even more important here is the avenue by which the Tribunal gained jurisdiction in this particular matter. The avenue is integral to the Enforcement scheme of the Act. This is explained below.

27. There is no dispute that the typology of the matter before the Tribunal is a complaint as opposed to an “Objection.” The Tribunal has jurisdiction to hold a complaint-type hearing (as opposed to an Objection) under defined circumstances. Subsection 25(1) states:

The Hearings Tribunal shall hold a hearing,

(a) if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24(3);

(b) if a request for a hearing, as described in subsection 23(4) or 24(6), is received by the Hearings Tribunal; or

(c) if a review officer refers a matter to the Hearing Tribunal under subsection 24(5).

28. The breadth of the Tribunal’s hearing is governed by the statutory provision under which an applicant requests a hearing. A hearing under subsection 23(4) is requested with respect to the decision of the review officer. On a hearing under subsection 24(5), the Tribunal is limited to determining whether the order had been obeyed. The Tribunal is specifically prohibited from considering the merits of the order: subsection 24(5.2). A hearing requested under subsection 24(6) is requested with respect to the order.

29. The Applicant has requested this hearing under subsection 24(6). That subsection states as follows:

An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to an order, and, where the order was made following a complaint but the complaint has not been settled, the complainant may also request a hearing. (Emphasis added).

30. It is clear that an Application under subsection 24(6) must challenge the Review Officer’s order. By necessary implication, the Tribunal must consider the “merits of the Order.” The phrase “with respect to an order,” allows an applicant to present evidence that includes the original complaint. But, by necessary implication, the Applicant must not challenge the original complaint directly. Such an application will not trigger the Tribunal’s jurisdiction because the Act does not provide for such an application.

31. In sum, the Tribunal has determined that it has jurisdiction over this matter by the mere fact that the Applicant has filed a request for a hearing according to subsection 24(6) of the Act. To be clear, the Tribunal’s jurisdiction in this matter is not determined by whether the Respondents were former employees when they filed the complaint with Review Services.

32. On the basis of its determination, the Tribunal need not answer whether former employees have a right under the Act to file a complaint. However, the Tribunal notes that the grounds for the Applicant’s first issue is that the Respondents had no standing to file a complaint with Review Services because they were not in the Applicant’s employ when they filed the complaint. And, the term employee does not include former employees.

33. Because this proposition strikes at the heart of the purpose of the Act, the Tribunal deals with the grounds of the Applicant’s issue. Both grounds are questions of fact, law or both that arise in this Application. The threshold question is whether the Tribunal has the power to determine whether the Respondents had standing to file a complaint with Review Services. An affirmative answer is contained in subsection 30(1). It states:

The Hearing Tribunal has exclusive jurisdiction to exercise the powers conferred upon it or by under [sic] this Act and to determine all questions of fact or law that arises in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes. (Emphasis added).

Did the Respondents have a right to file a complaint under the Act?

34. The Tribunal has stated the first issue and the salient arguments of each party above. The ground for that issue, however, can be stated simply as follows: Did the Respondents have the right to file a complaint under the Act? If so, can the cessation of employment extinguish or forfeit the Respondents’ rights under the Act?

35. The Tribunal finds that the Respondents had asserted their statutory right provided under the Act by filing the complaint in December 1994. Further, the Order, which the Applicant now challenges, arises directly from the initial complaint the Respondents filed in December 1994. The Order is a result of the uninterrupted attempts by Review Services to achieve a settlement of the Respondents’ original complaint. Thus, the Tribunal finds that the Respondents had the right to file a complaint under the Act.

36. The facts that are not in dispute are that the Respondents had filed a complaint to Review Services in December 1994. Implicitly, they had claimed, among other things, that the Applicant had failed to compensate them for the changes in their job responsibilities as Pool Deck Supervisors. At that time, they were employees of the Applicant.

37. Review Services issued an order on November 18,1996. The remedial part of the Order states:

In accordance with the provisions of subsection 24(3) of the Act, I order the Employer:

1. To post and implement a pay equity plan, effective January 1, 1990, for all employees in the establishment, not represented by a bargaining agent. The plan must comply with the provisions of Section 13 of the Act. No job classes are to be excluded from the plan. The plan must be posted within ninety (90) days of the date of this Order. (Emphasis added).

2. To ensure that pay equity is achieved by complying with Section 6 of the Act, and to make pay equity adjustments, where required, retroactive to January 1, 1990.

3. To maintain pay equity, once established, in accordance with the provisions of subsection 7(1) and Section 14.1 of the Act.

4. To designate the job class, Complex Pool Deck Supervisor, as a female job class.

If, after ninety (90) days from the date of this Order, I am not satisfied that the Order is being complied with, I may refer it to the Pay Equity Hearings Tribunal for enforcement under subsection 24(5) of the Act.

38. In March 1998, the Applicant posted another pay equity plan. In the fall of 1998, the Respondents filed another complaint with Review Services alleging, among other things, that they had never been compensated for the changes in their job responsibilities as a Pool Deck Supervisor. Because of that complaint, Review Services issued the Order that is now impugned by the Applicant.

39. The Applicant does not state explicitly whether compensation to the Respondents was part of the resolution. It submits, however, that it had complied with the Review Officer’s Order that ensued from the Respondents December 1994 complaint. The Applicant states at para. 8 of its Reply:

The Town objected to that order and requested a hearing. Prior to a hearing be held [sic], the matter was settled when the Town posted a revised pay equity plan. The order of Review Officer McLean was deemed complied with and the file associated with this complaint was closed in or about March, 1998.

40. The Respondents agree that an amended pay equity plan was established. As noted above, by implication, they now claim they had never been compensated for the changes in their job responsibilities.

41. Significantly, the impugned Order, which ensues from the Respondents’ fall 1998 complaint, among other things, requires the Applicant to prepare a new pay equity plan; to maintain pay equity for the Pool Deck Supervisor job class by placing it in a higher salary grade; and implicitly, to make compensation retroactive from September 1, 1991 to December 31, 1995.

42. The significance of that Order is not the truth of the contents of the Order, but the fact that the Order replicates several requirements implicitly stipulated in the November 18, 1996 order. Also, there is specific information that is common to both orders: a specific issue about the Pool Deck Supervisor job class; the complainants, who filed the original complaint before they left the Applicant’s employ in 1996; and the requirement that the Applicant makes pay equity adjustments or compensation according to the Act. There is no dispute about the fact that the Respondents were Pool Deck Supervisors in the Applicant’s employ.

43. The reasonable inference that can be drawn from both orders is that the Respondents’ initial complaint remains unresolved despite the various interventions of Review Services. To be clear, the Tribunal takes no decision on whether the Applicant had contravened the Act; or the correctness or reasonableness of either order. The former is the Applicant’s contention with respect to the Order, and, it is the issue that the Tribunal must determine in the hearing on the merits. The Tribunal now considers the next question.

Can the cessation of employment alone extinguish or forfeit the Respondents’ rights under the Act?

44. The Tribunal finds that the termination of the Respondents’ employment with the Applicant did not end the employee/employer relationship to the extent that, automatically and contemporaneously, their right to pursue their complaint and receive compensation under the Act was extinguished or forfeited. It would require more than merely quitting their jobs for them to have extinguished or forfeited their statutory right. Moreover, such forfeiture or extinguishment would require clear and apt legislative language, or some unequivocal word or deed by the Respondents.

45. The Applicant does not dispute that, as employees of the Applicant, the Respondents had a right to file a complaint alleging that the Applicant had contravened the Act; more specifically, that they were not being compensated for the changes in their job responsibilities. It does not submit that the Respondents were compensated for the changes in their job responsibilities as part of the resolution of their complaint. It argues however, that their complaint had been resolved because the Review Officer McLean’s order was “deemed complied with and the file associated with this complaint was closed in or about March, 1998” when it posted a “revised pay equity plan.”

46. Based on the information before it, as the Tribunal concludes above, the Order the Applicant now challenges arose directly from the Respondents’ initial complaint. The Tribunal finds that when the Respondents left the Applicant’s employ, the complaint was unresolved. The unresolved complaint created a real residual relationship between the Applicant and the Respondents even though they had otherwise terminated their active employee/employer relationship with the Applicant. It is clear that the Respondents believe their initial complaint remains unresolved. It is clear from their continuous pursuit of the matter that they had no intention to abandon their complaint.

47. There is no evidence before the Tribunal that the Respondents have done anything to extinguish or forfeit their rights. Neither the Act, in clear language or by necessary implication, nor the Tribunal’s jurisprudence, leads one to conclude that an employee who is entitled to the benefits of the Act or who files a complaint under the Act forfeits his or her right to receive the full benefit of the Act by simply resigning from his or her job. There is no such prescriptive extinguishing provision in the Act. So, the Tribunal concludes that even though the Respondents left the Applicant’s employ, their statutory right under the Act survived.

48. The Tribunal has found that the Respondents’ pay equity right has survived the termination of their employment with the Applicant. Therefore, to accept the Applicant’s proposition that the Act precludes former employees from filing a complaint would be exempting the Applicant from the operation of the statute or suspending the operation of the Act. Stated another way, even though an employee had filed a complaint under the Act, the employer would be relieved automatically of its statutory obligation because the employee has left its employ.

49. To accept the Applicant’s argument would wreak havoc in the enforcement of pay equity legislation against employers. For all an employer would have to do is terminate an employee to avoid compliance with the Act. So, while the employee may or may not have a wrongful dismissal claim, he or she cannot avail himself or herself of a pay equity remedy. Essentially, that would suspend the operation of the statute. Moreover, that would be inconsistent with public policy and public interest.

50. The Applicant argues that the Act does not define the term employee and therefore, the plain and ordinary meaning must be ascribed to it. It further argues that even when one gives a liberal interpretation to the term employee it cannot bear the inclusion of former employees. The Applicant argues that where the “person” had never been an employee, that person is protected under section 26. The Tribunal disagrees.

51. With respect, the Act does define employee, albeit by excluding one single class to whom it does not apply: specifically, a student who is employed only for the vacation period. With such an approach to defining the term, it is not helpful to conclude that because the Act does not specifically include former employees, they are excluded or that the term employee is not defined at all.

52. It is indeed a curious proposition that the Act precludes former employees from claiming the benefits of its provisions and yet provides protection to a “person” who has never been an employee. One would have to suspend logic to embrace such a view given the purpose of the Act.

53. In the Tribunal’s view, it was open to the Legislature, by the use of apt language, to preclude former employees from lodging a complaint under the Act. Further, it was open to the Legislature to extinguish the rights of former employees under the Act by using apt language. The Act does not include either prescription because that could undermine the very purpose of the Act.

54. Subsection 4(1) of the Act states: “The purpose of the Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.” (Emphasis added). The operative words are “redress,” “systemic” and “compensation.” Redress is to make reparation for a wrong. Systemic denotes the whole body as opposed to a particular part. Compensation denotes giving recompense, usually money, to a person for his or her loss. (See the Concise Oxford Dictionary of Current English, 9 (Ed), Clarendon Press, Oxford).

55. The Tribunal concurs with the Applicant’s view that as a remedial statute, the term employee must be given liberal interpretation. But a liberal interpretation cannot be imported in or through a vacuum. And, a liberal interpretation cannot result in a violation of the Act; nor should a liberal interpretation be applied if it will defeat rights as opposed to protect them. Moreover, a liberal interpretation must be commensurate with a purposive approach: both are mutually inclusive to achieve the practical and philosophical legislative objectives within the scheme of the Act. The latter is expressed in subsection 7(1) of the Act: “Every employer shall establish and maintain compensation practices that provide pay equity in every establishment of the employer”: (Emphasis added). It is a violation of the Act for an employer to adopt compensation practices that would cause a contravention of subsection 7(1) of the Act.

56. In the Tribunal’s view, a proposition can be drawn from Canadian pay equity legislation, jurisprudence and conventions. It is: “once a person had been employed by an employer, and the person believes that during his or her term of employment, the employer failed to adopt compensation practices that provide for pay equity, whether that person is still employed with the said employer, that person is entitled to file a complaint with Review Services alleging such a breach.”

57. In Canada, by convention, attempts are made to give notice of a pay equity complaint to all affected persons including former employees. The rationale, as noted above, is that in the pay equity scheme, as long as an employer is bound by pay equity legislation, there is always a real residual relationship between it and erstwhile employees who might be affected by an alleged failure to comply with the legislation. The alleged failure to comply is the link that keeps the residual relationship alive until there is a resolution.

58. So, at the federal and provincial level, where a claim has been made successfully that an employer had failed to maintain compensation practices that provide for pay equity, if monetary compensation is part of the remedy, it is given to former employees, current employees and future employees will benefit from the adjustment. Compensation is not given retrospectively to former employees because of the deftness of the mediator, or the generosity of the employer, but because former employees are interested persons and have a statutory right to compensation. A landmark example is the case between Canadian Telecommunications Employees Association and Bell Canada: (cite omitted).

59. In sum, the Tribunal finds that the Respondents had standing to bring a complaint to Review Services even though they were erstwhile employees of the Applicant when they filed the complaint. The termination of their employment with the Applicant did not operate to extinguish or forfeit their right under the Act.

60. Before turning to the next issue, it is apposite to make comments concerning the nature of the Act. It is apparent from the Applicant’s submissions that it relies heavily on common law principles and other employment standard legislation to buttress or to inform its position in this matter. That may be useful in some cases, but it may ignore or even be antithetical to the purpose, scope and scheme of the Act.

61. The Pay Equity Act provides a panoply of protections for employees by specifying minimum standards that employers, bargaining agent, if any, or employees must adopt to “redress systemic gender discrimination for work performed by employees in a female job class.” Although some provisions of the Act embrace common law doctrines, the Act is sui generis. Therefore, one cannot simply presume that every generic principle of common law or employment law can be imported automatically in the interpretation or application of the Act. The fact that the legislation is a hybrid of human rights and labour concepts does not make it any less so. Some provisions, for example subsection 9(2) - the reverse onus - are even contrary to common law principles. By its very nature, there are prohibitions from contracting or opting out of the Act: section 7. It fosters “lingering rights,” “residual relations” and obligations between employer, bargaining agent, if any, and employees, even where an active employment relationship no longer exists. These are, at common law, inconsistent with the approach with respect to employment relationship.

62. Significantly, and unlike most employment and human rights legislation, the Act includes a privative clause: (subsection 30(1)). It confers power on the Tribunal to answer all questions of fact or law that arises in any matter before it: (subsection 30(1)). Further, the Act empowers the Tribunal to “reconsider” decisions or orders made by it and to vary or revoke the decision or order: an appeal on fact or law, if you will: (subsection 31(2)). And, although the Tribunal’s decisions or orders are subject to judicial review, they are not subject to appeal by the civil courts. The Tribunal now addresses the second preliminary issue.

ISSUE 2: If the Tribunal has jurisdiction, must the Respondents present their case first? Who bears the onus of proof in this Application?

the applicant’s position

63. The Applicant submits that in this Application, the Respondents are asserting a misconduct: that it “has violated the maintenance provision of the Act.” It says there is no reverse onus, so according to “established legal principles,” the Respondents must proceed first and they bear the onus of proof. Further, the Applicant argues that for practical considerations and consistent with this Tribunal’s jurisprudence, the Respondents ought to proceed first. It cites St. Joseph’s Villa (1993), 4 P.E.R. 33; Great Lake Bricks and Stone Ltd. (1994), 5 P.E.R. 1; Haldimand-Norfolk (Regional Municipality)(No. 2) (1990), 1 P.E.R. 13; Cybermedix Health Services Ltd. (1990), 1 P.E.R. 41; New Liskeard Board of Police Commissioners (No. 2) (1991), 2 P.E.R. 39; and Lady Dunn General Hospital (1991) 2 P.E.R. 168, to support its submission.

64. Also, the Applicant submits: “The town is not aware, despite making inquiries, of any of the specifics or details supporting the Respondents’ claims that their job duties changed in such a way as to make the pay equity plan no longer appropriate. On that basis, practical concerns favour the Respondents proceeding first.” The Applicant argues that proceeding first would necessitate proving a negative; splitting its case; and not knowing the case it has to meet.

65. The Applicant argues that a hearing before the Tribunal is not an appeal of a Review Officer’s order: it is a hearing de novo of the original issues in dispute that were before Review Services. Therefore, “It is highly illogical and unreasonable to have a hearing de novo, yet have the order of proceedings at the hearing de novo determined entirely on the basis of the order made by the Officer – an order which is of no relevance to the determination of the merits on the case.” In addition, the Applicant submits that its “objection” to the Order “cannot be separated from the original complaint.”

66. The Applicant submits that the Tribunal’s conclusions in Town of Newmarket (No. 2) (December 3, 2003) 0742-02 (P.E.H.T.), at para. 28 are contrary to its jurisprudence. The Applicant repeats that its Application before the Tribunal is objecting to the initial complaint. If the objection were against the Order, the hearing before the Tribunal would “in fact be an appeal rather than a hearing de novo.” Finally, the Applicant asks the Tribunal for an “order dismissing this matter and declaring the Officer’s Order void ab initio on the basis that the Commission was without jurisdiction to deal with the Respondents’ complaint.”

The Respondents position

67. The Respondents submit that this is not a subsection 9(2) matter. Therefore, there are no practical or fairness considerations that require them to proceed first. The Respondents submit that the Applicant chose to challenge the Order by requesting a hearing before the Tribunal. They assert that according to the Tribunal’s Application Form 1, the Applicant has set out four specific “statements” why it is objecting to the Order. The statements are not referable to the original complaint. They submit that those statements, which the “Town has proof of,” are the bases for the Applicant’s decision to file an application to the Tribunal for a hearing. Therefore, the Applicant understands their case already and should proceed first.

68. Further, the Respondents submit that “starting [anew] should start with the [Applicant’s] statements outlined in their Application” to the Tribunal. The Applicant would have the opportunity to prove to the Respondents and the Tribunal that it did not contravene the Act as stated in the Order. After the Applicant has presented its case, they will have the opportunity to respond to the Applicant’s evidence. Therefore, it is logical and reasonable that the Applicant proceeds first.

69. The Respondents argue that the Applicant has met several times with review officers. Therefore, it should know what the allegations in this matter are.

70. Finally, the Respondents request that the two preliminary issues be denied; the Applicant proceeds first in this matter, addressing the four allegations made in the Application.

Analysis

71. The Tribunal has determined that the Applicant shall proceed first in the Application before it. The Applicant bears the onus of proof. As the Respondents pointed out, the Applicant bears the burden to prove the grounds on which it challenges the Order.

72. The Applicant argues that for practical considerations and consistent with this Tribunal’s jurisprudence, the Respondents ought to proceed first. To the best of this Panel’s knowledge, the Tribunal’s jurisprudence does not require a respondent to proceed first under a subsection 24(6) application. None of the cases the Applicant cites to support its proposition deals with the issue the Applicant has put squarely before this panel. However, some cases are instructive about the nature of the proceeding before the Tribunal.

73. The Tribunal pauses to note that the processes employed at Review Services are not hearings at all. They are alternate dispute mechanisms to achieve resolution of disputes toward compliance with the Act. A Review Officer, although required to exercise fairness, is not bound by the strictures to which an adjudicator is bound: for example, the Statutory Powers Procedure Act R.S.O. 1990, c. S.22, as amended.

74. Further, a review officer’s expertise allows him or her to distil the essence of the disputes between the employer, the bargaining agent, if any, or the employee with respect to compliance with the Act into comprehensive issues. Thus, only the issues determined at Review Services can the Tribunal deal with in a hearing. Thus, the Tribunal must know those issues before it can hold a hearing, take a decision and make an order according to subsection 25(2) of the Act. And, only after it has taken a decision, the Tribunal may turn its attention to the remedial part of the order to determine whether to exercise its powers under subsection 25(2). The Tribunal does not review the facts on which the Review Officer based its order at all.

75. The Tribunal has been consistent in holding that its jurisdiction to hold a hearing is limited to the issues as determined at Review Services. It has been consistent in holding that a hearing before it is indeed a hearing de novo and not an appeal. Why are the hearings classified as “de nova hearings?” Simply explained: a hearing before the Tribunal is the first hearing on the merits about the issues that were in dispute at Review Services: the complaint stage. It is the first time the parties have the opportunity to give evidence and make submission about their dispute. The Tribunal does not look at a Review Officer’s order and decide whether it is reasonable or correct. That would be inconsistent with the principles of natural justice. The Tribunal takes a decision only after it has heard evidence from the parties. The Tribunal decision is based on the evidence presented at the hearing. The Tribunal states these propositions aptly in Haldimand-Norfolk, supra, at para. 3.

In this proceeding witnesses will be called and the Tribunal will hear the evidence for the first time. In hearing the merits, the Tribunal will take a fresh look at the issues and provide the parties with the first opportunity to adduce evidence and to make submissions on the matters in dispute at a full hearing subject to the Statutory Powers [Procedure] Act.

76. The Tribunal echoes a similar view in Cybermedix, supra, at para. 17.

In contrast, section 25 of the Pay Equity Act, 1987 [sic] requires the Tribunal to hold a hearing and to comply with the provisions of the Statutory Powers Procedure Act. This proceeding is not an appeal from a review officer’s order, but is rather, a hearing de novo on the issues in dispute…Evidence on the issues must be called at the hearing by the parties and be subject to cross-examination. The Tribunal will assess the credibility of witnesses and determine the weight to be given to the evidence. To turn these proceedings into an appeal of a review officer’s order would be contrary to the intent of the statute, would have the negative impact of judicializing the review services process and would take away their primary focus on mediation and settlement. Therefore, these proceedings will be hearings not appeals, and the decisions of the Tribunal will be made based on the evidence presented at the hearing.

77. It may seem misleading to use the nomenclature a “hearing de novo” because the Review Services processes are not hearings: they are mediative and negotiation processes towards settlement of the complaint. However, it is correct to say that the hearings are not appeals. And even if the hearings were indeed appeals, whoever makes the appeals, even in a subsection 9(2) matter, must proceed first. The order of proceeding is not the same as who bears the onus. In other words, if an employee requests a hearing based on a subsection 9(2) matter, the employee will proceed first; but he or she needs only to assert certain facts. Having done so, the onus is then on the employer to prove it had not contravened subsection 9(2).

78. The Applicant’s submissions that it is at a disadvantage because it does not know any of the specifics or details of the Respondents’ claims must be discounted. The reasons stated in its Application for requesting a hearing contradict its submissions. By admission, the Applicant is aware of the background of the Order. Furthermore, as the employer, the Applicant is in a better position to establish to the Tribunal whether its assertions are so. As the Respondents opined, after working with several Review Officer in this matter, the Applicant ought to know what the issues are and what case it has to meet.

79. Concerning the remedy the Applicant requests for a declaration that the Order is “void ab initio on the basis that the Commission was without jurisdiction to deal with the Respondents’ complaint,” it is sufficient to say that the Act does not contain any provisions to void a review officer’s order or stay it because Review Services lacked jurisdiction.

Conclusion

80. The Tribunal concludes that it has jurisdiction to hear this Application because the Applicant has requested a hearing under subsection 24(6) of the Act. As the party who challenges the Order, the Applicant must present its case first and it bears the burden of proof. The hearing before the Tribunal is the first hearing on the merits in this matter: it is not an appeal. The lis that is being challenged is not the original complaint, but the Order: subsection 24(6).

81. The fact that the Respondents filed a complaint with the Review Services after they had terminated their employment with the Applicant does not affect the Tribunal’s jurisdiction, or operate to extinguish or to forfeit the Respondents’ right to file a complaint under the Act. They had filed the initial complaint while they were employees, which after an uninterrupted process, resulted in the Order that the Applicant now challenges.

Dated at Toronto this 9^th^ day of February 2004.

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Patricia E. DeGuire, Vice-Chair

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Catherine Bickley, Member

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Diane Rose, Member