Commport Communications International Inc. v. Pay Equity Commission, 2006 CanLII 61260

Commport Communications International Inc. v. Pay Equity Commission

4067-05-PE Commport Communications International Inc., Applicant v. Pay Equity Commission, Respondent.

BEFORE: Mary Ellen Cummings, Chair, Margaret Kvetan and Pauline R. Seville Members.

CITE AS: Commport Communications International Inc., April 13, 2006, File No. 4067-05-PE (P.E.H.T.)

DECISION OF THE TRIBUNAL; April 13, 2006

1This Application has been brought by Commport Communications International Inc. (“the Employer”) in respect of an Order of a Review Officer dated February 23, 2006. The Order concluded that the Employer had failed to establish and maintain pay equity as required by section 7(1) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”). The Employer was directed to take a number of positive steps to establish and maintain pay equity.

2The Employer’s application resists the need to take the steps outlined by the Officer.

3The Registrar of the Tribunal identified the Pay Equity Office as a Respondent and advised it of the time limits established under the Tribunal’s Rules for Respondents to respond to an Application.

4By letter dated April 6, 2006, the Pay Equity Office has raised a number of issues. It says that it is not a statutory respondent because, in accordance with section 24(5) of the Act, the Pay Equity Office is only a statutory party when it makes a referral. However, the Pay Equity Office notes that the Act permits it to seek to participate and that the Tribunal can grant it standing. At this point the Pay Equity Office is considering whether it wants to participate and seeks an extension of time to make that determination.

5The Pay Equity Office notes that this Order arose out of its mandate to enforce the Act and that there is no individual complainant or group of employees who would naturally become parties. Since this Application will have an impact on the whole of the workplace, the Pay Equity Office asks the Tribunal to consider directing the Employer to post a notice of the Application in the workplace and to give notice to all former employees by mail. However, the Pay Equity Office acknowledges that directing such notice may be premature and that the Tribunal should consider first directing the Employer to better detail its Application.

6In summary, the Pay Equity Office seeks an extension of time and some direction from the Tribunal about next steps.

7The Tribunal made an administrative determination that the Pay Equity Office was a Respondent based on the information provided in its Order. The Order identified the Pay Equity Office as the “Applicant” and the Employer as the “Respondent”. The Tribunal essentially adopted the Pay Equity Office’s characterization of the parties and their roles. However, we agree that the Act, as it has been interpreted by the Tribunal, provides that the Pay Equity Office has a statutory right to be a party only when it makes a referral. In other circumstances, the Pay Equity Office must seek standing to participate and the Tribunal makes a determination.

8To our knowledge, this is the first case in which the Tribunal has had to squarely address the obligations of a small employer to whom Part II of the Act does not apply. In other words, what are the obligations of an employer who is not required to prepare and post a plan but must still “establish and maintain compensation practices that provide for pay equity (section 7(1))?” This may be a set of circumstances in which the Pay Equity Office may choose to seek to intervene. But, at least initially, the decision to request standing to participate must be made by the Pay Equity Office. If the Pay Equity Office chooses to seek to intervene, the Tribunal will determine if it may intervene.

9The Tribunal will, at some point, have to determine whether to require the Employer to provide further particulars and will also have to determine whether to direct the posting of notice in the workplace and mailings to former employees. But we will not make those decisions until we see what the Pay Equity Office, the named Respondent, wants to do.

10If the Pay Equity Office wishes to serve and file a Response, it must do so by no later than May 5, 2006.