841986 Ontario Limited o/a Helping Hands Daycare v. Group of Employees, 2007 CanLII 62087

Pay Equity Hearings Tribunal

2387-05-PE 841986 Ontario Limited o/a Helping Hands Daycare, Applicant v. Group of Employees, Respondent

Before: Patricia E. DeGuire, Vice-Chair, Margaret Kvetan and Pauline R. Seville, Members

Cite as: Helping Hands Daycare (No. 3) (23 March, 2007), 2387-05 (P.E.H.T.)

RECONSIDERATION

I. INTRODUCTION

1This is the Tribunal’s Decision and Reasons concerning the Applicant’s Request for Reconsideration of the Tribunal’s decision dated October 11, 2006 (the “Decision”). That Decision confirmed a Review Officer’s order, which was issued on July 15, 2005 (the “Order”).

2The Applicant is an entity named 841986 Ontario Limited operating as Helping Hands Daycare (the “Employer”). Ms Nancy Linda Eickmeier purchased Helping Hands Daycare in 1989, and has held the position of Executive Director since then.

3The Employer is a public sector employer. It operates two day care nurseries, which are licensed under the Day Nurseries Act, R.S.O. 1990, c. D.2. The Employer is a “seeking” Employer, i.e., an employer in respect of whom a review officer has issued an order under subsection 21.12(2) of the Pay Equity Act, R.S.O. 1990, c. P.7 (the “Act”). As such, the Employer is required to prepare and post a pay equity plan using the proxy method of comparison.

4In the Order, the Review Officer had directed the Employer to take several actions, including the preparation and posting of a pay equity plan retroactive to January 1, 1994, using the proxy method of comparison set out in Part III.2 of the Act, and to pay the pay equity adjustments. The Employer had objected to the Order and brought an Application before the Tribunal. The hearing on the merits was held on June 26, 2006. Ms Eickmeier, the Executive Director, gave the only evidence for the Employer. The Tribunal reserved its decision, which was released on October 11, 2006, confirming the Order.

5By letter dated November 7, 2006, the Employer filed its initial Request for Reconsideration. The Tribunal notes that the request was filed seven days after the deadline, and was not filed in the proper form. The Employer did not request an extension. However, by directing the Employer to re-file its request in the proper form, the Tribunal implicitly granted an extension within the meaning of Rule 81 of the Tribunal’s Rules of Practice, November 2002. The formal Request for Reconsideration was filed on November 28, 2006.

II. DECISION

6The Request for Reconsideration is denied. The Applicant has failed to meet any of the factors for Reconsideration. The Reasons are set out below in the section entitled “Discussion and Analysis”, beginning at paragraph 24. The Tribunal’s order is set out at paragraph 34.

THE APPLICANT'S SUBMISSIONS FOR RECONSIDERATION

7Essentially, the Employer’s grounds for Reconsideration are that the Tribunal breached the principles of natural justice and procedural fairness. The Employer submits that the Tribunal reached a wrong decision in law and fact. Therefore, its request for Reconsideration meets the Tribunal’s test for exercising its discretion to reconsider this case.

8Specifically, the Employer claims the Tribunal “declined to receive” evidence from several witnesses, who were in attendance at the time of the hearing”. Further, the Tribunal “erred in not requesting, directing or permitting the employer to call those witnesses”. According to counsel, the witnesses were the Employer’s “employees”.

9The Employer submits that “by [the Tribunal] indicating to the [E]mployer that further evidence was not required (although several witnesses were in the hallway waiting to be called)”, it “was misled by the Tribunal at the [h]earing that [it] had established the onus, which was on it to show that the increases given [to employees] were pay equity adjustments.”

10More specifically, the Employer asserts that those witnesses:

• were ready to give evidence about “the appropriateness and the potential of the proxy employer”, the Comparator, the Salary information and the general nature comparison system” [sic];

• would have testified that the “process in place would have and did result in pay equity adjustments and not merely wage increases as assumed by the Tribunal”;

• could have given evidence about the “female job classes and the pay equity adjustments, which were provided. . .”;

• could have given evidence to show that “the [E]mployer followed the process and composed a proper pay equity plan as stipulated by the Act”;

• “could have and would have [given evidence to] show that the monies that were paid out by the [E]mployer were pay equity adjustments and were not wage increases as indicated as a possibility in the Tribunal[‘s] decision”.

11The Employer submits that the Tribunal came to an incorrect conclusion by stating that the Employer failed to prepare and post a pay equity plan; and that the Employer did not comply with the Act.

12The Applicant requests that the Decision be set aside. Instead, the Tribunal should issue an order stating that the Employer has “fully complied and abided by the July 15, 2005 . . .Order”. In the alternative, the Employer should be permitted to call further evidence to address the conclusions and assumptions, which were made by the Tribunal in its Decision.

WHAT IS RECONSIDERATION?

13The Act confers power on the Tribunal to reconsider its decisions and orders. However, Reconsideration is not defined in the Act. Nor does the Tribunal’s Rules of Practice, November 2002, set out clearly the specific touchstones, which may be employed in deciding whether to exercise that discretion. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 is not useful on this issue.

14The Tribunal’s jurisprudence is clear; the Tribunal may exercise its discretion to reconsider its decisions or orders only where it finds that there are compelling and extraordinary circumstances to justify the suspension of the rule of finality. That is consistent with the functional and pragmatic underpinning of the general principles of finality regarding functus officio, which the courts and tribunals employ in cases concerning rehearing, reopening, or receiving fresh evidence: see e.g., Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848); e.g., Imperial Tobacco, [1974] OLRB Re. Sep 609; and K-Mart Canada Limited Peterborough, [1981] OLRB Re. Feb 185. Also, see Macaulay and Sprague in Practice and Procedure Before Administrative Tribunals, Vol. 3, c. 27-A.

15Reconsideration is not an appeal. It is not an opportunity to repair a deficiency in any party’s case. It is not a means for any party to retry its case or to supplement the evidence it ought to have given in the hearing on the merits.

16In deciding whether to exercise its discretion to reconsider its decision, the Tribunal harmonises many factors and competing interests. Those factors and competing interests include full regard to the purpose of the Act, (to redress systemic gender discrimination in compensation for work); the keen public interest factors of the purpose and scheme of the Act; the significant and broad policy implications of its decisions, including the principles of finality; the deference of the courts to the Tribunal’s expertise to deal with these matters; and the immediacy of Reconsideration relative to judicial review, in particular, the functional and pragmatic approach to correct an error at once.

THE TRIBUNAL'S JURISDICTION TO RECONSIDER ITS DECISIONS

17The applicable provision, subsection 30(2) states:

The Hearings Tribunal may at any time, if it considers it advisable to do so, reconsider a decision or order made by it and vary or revoke the decision or order. [Emphasis added]

18In addition, the Tribunal’s enabling statute contains a strong privative clause in subsection 30(1) of the Act. That provision states:

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

19An inference from reading those two provisions together is that the Tribunal’s decisions are intended to be final. Thus, only in clear circumstances, it might be proper for the Tribunal to reconsider its decisions or orders. The power is discretionary. It follows that parties are not entitled to Reconsideration as of right. And although not as formal or strict as a court, the Tribunal must have appreciation for the principles of finality.

FACTORS APPLIED IN A RECONSIDERATION

20In Women’s College Hospital (No.2) (1990), 1 P.E.R. 178, at para. 14, the Tribunal adopted three factors in determining whether it should reconsider its decisions or orders. Those three factors have been followed in several cases, including Riverdale Hospital (No.2) (1991), 2 P.E.R. 8; Dare Foods Ltd., (No.2) (1993), 4 P.E.R. 1; Management Board Secretariat (No. 2) (1994), 5 P.E.R. 10; St. Joseph's Villa (No.2) (1994), 5 P.E.R. 8; Hamilton Civic Hospitals (No. 3), (1996), 7 P.E.R. 26; Management Board Secretariat (No.7) (1999-2000), 10 P.E.R. 1; and GL & V Process Equipment (No. 4) (1999 – 2000), 10 P.E.R. 72.

Those three factors, while not exhaustive, are well entrenched in the Tribunal’s jurisprudence. They are:

1. Was there evidence at the time of the hearing that was not presented because it was unavailable to the party asking for reconsideration, and which is likely to make a substantial difference to the outcome of the case? [Emphasis added]

2. Since the decision, has there been a change in circumstances such that the decision should not stand? [Emphasis added]

3. Is the decision wrong in law?

21There is no requirement that all three factors must be met before the Tribunal may exercise its discretion. Nor is there any requirement for the Tribunal to exercise its discretion even if it finds that a requester has met any one of those criteria. The proper way to apply these factors is, first determine whether the requester of Reconsideration can bring itself within one of the three factors. If the requester is successful in doing so, the next step is to determine whether the Tribunal should exercise its discretion to reconsider its decision. For each step of the analysis, the burden of proof lies with the party seeking Reconsideration: here, the Employer.

22Factors one and three are relevant in this case. To avoid abuse of the reconsideration provision and to uphold the notion of finality to its decisions, the Tribunal should consider several sub-factors in relation to the first factor. First, whether by due diligence, the new evidence could have been adduced at the hearing. Applying Chandler, at paragraph 22, in this context, this sub-factor should not be applied rigidly, especially where the enabling statute indicates the Tribunal may reopen its decisions to enable it to carry out the purpose of the legislation. A second sub-factor is whether the new evidence is relevant to a decisive or arguably decisive issue raised at the Pay Equity Office and dealt with at the hearing. A third sub-factor is whether the evidence is credible. A fourth sub-factor is if the evidence is believed, when considered with the evidence adduced at the hearing, it likely would be expected to have a significant impact on the outcome: not merely an impact.

23The third factor may include a breach of any of the principles of natural justice, including fairness. The requester must adduce compelling evidence that the Tribunal’s decision is wrong in law. Justice may require reopening a decision to provide relief, which would otherwise be available on a judicial review.

DISCUSSION AND ANALYSIS

24First, the Tribunal addresses the Employer’s assertion that the Tribunal “declined to receive” evidence from several witnesses; “erred in not requesting, directing or permitting the employer to call those witnesses”; and that the evidence that the Tribunal did not call or request, would have had direct bearing on the “conclusions and assumptions reached by the panel when it rendered its decision.”

25Ms Eickmeier was the only witness for the Employer. After she had finished testifying, the Tribunal asked counsel, “Is this all the evidence you intend to call?” Counsel replied yes, and added that there were several employees present who could give evidence “if the Tribunal wants to hear from them”. He added that he thought Ms Eickmeier’s evidence “had met the onus” and that his submissions would be brief. The Tribunal then enquired what those witnesses would say. Counsel replied, “The witnesses would be essentially confirming Ms Eickmeier’s testimony.” Specifically, counsel stated that the witnesses “will only confirm” that “the posting was done” and when the posting was done; and that they had received pay equity adjustments. In other words, the witnesses would have only added support to Ms Eickmeier’s testimony. The Tribunal then stated that it seemed those employees’ evidence would be repetitive. Also, the Tribunal stated that it was counsel’s decision whether he called the witnesses to whom he had referred. Counsel did not call any other witnesses; he proceeded to make final submissions.

26Can it be inferred from that circumstance that the Employer was denied a fair hearing? Can it be inferred that the Tribunal failed to follow the principles of natural justice? The Tribunal cannot accept or draw such inferences. The Tribunal has no control over counsel’s litigation strategy, nor did it seek to do so.

27A more compelling inference is that counsel knew or ought to have known that he had the option to call whatever evidence he wished and decided against doing so. It is not reasonable to conclude in that context that the Tribunal had restricted the content or the duration of Ms Eickmeier’s evidence, or the Applicant’s case. Nor is it reasonable to conclude that the Employer was denied a fair opportunity to present its case; or that the Tribunal failed to follow the principles of natural justice. The Tribunal concludes that this submission does not meet any of the factors above. Therefore, these arguments fail.

28In his letter to the Tribunal dated June 26, 2006, counsel commented about the sufficiency of evidence led at the hearing, and having a fair opportunity to present his case. In that letter, implicitly, counsel acknowledged that the Employer was given adequate opportunity to present its case. Counsel’s comments in that letter are not consistent with his submissions here: that the Employer was not permitted to present its case in full. The letter is reproduced below verbatim:

It was a pleasure meeting you and having the opportunity to present the Application of Helping Hands Daycare with respect to the above-noted matter. If you are requiring further information to determine this matter, please do not hesitate to contact the undersigned. In addition, if you require confirmation of the Region of Durham’s pay scales as set out in Exhibit 1, Tab 2, please advise.

29Based on counsel’s submissions at the hearing, the comment in his June 26, 2006 letter, and his submissions for Reconsideration, the Tribunal makes several conclusions. First, those witnesses might not have even added support to Ms Eickmeier’s testimony if their evidence would have been just a recitation of what the Employer had told them: that the document in question is a pay equity plan and that the monies it had paid them were for pay equity adjustments. Second, those submissions and assertions not only seem spurious, but also seem like an attempt to gain an opportunity to reargue the case or to repair the deficiency of the Employer’s case. Third, even if the witnesses’ evidence were likely to make a substantial difference to the outcome of the case, it cannot be accepted as “fresh evidence” because, according to counsel, this evidence was available to the Employer at the time of the hearing. Fourth, at the end of the Employer’s case, the Tribunal reserved its decision. Except for enquiring whether the evidence given by Ms Eickmeier was all the Employer’s evidence, the Tribunal did not direct the Employer to provide more information or suggest that the evidence at the hearing was inadequate. Fifth, and significantly, those submissions do not meet any of the factors noted in paragraph 20 above.

30Similarly, counsel’s submission that it was misled by the Tribunal at the hearing that it had established the onus to show that the increases given were pay equity adjustments cannot be accepted. So too is counsel’s submission that the Tribunal had indicated to it and its representatives that further evidence was not required, although several witnesses were in the hallway waiting to be called. For the Reasons given in paragraph 29 above, those submissions have no merit and therefore must fail.

31The fundamental issue that is fatal to the Employer’s case is that the Employer failed to prepare and post a pay equity plan as prescribed by the Act. The Tribunal has no jurisdiction to waive this requirement or grant relief for partial compliance. The evidence is clear; the Employer has not prepared and posted a pay equity plan as prescribed by the Act. The only cure for that failure is for the Employer to prepare and post a pay equity plan as prescribed by the Act.

DISPOSITION

32The Tribunal is satisfied that the Applicant’s grounds for requesting Reconsideration are merely a request to allow it to reargue its case or to fix the deficiency in the evidence it presented to the Tribunal at the hearing, or both. Overall, the inference is that the Employer has mischaracterised its grounds by calling it a wrong decision in fact and law, and implicitly, a failure to give it a fair hearing: a breach of the principles of natural justice and procedural fairness. The Employer has not met any of the factors set out in paragraph 20 above. It seems that Employer’s real complaint is not the way the Tribunal came to its decision. It is about the decision itself, i.e., confirming the Review Officer’s Order.

33The interest of justice would not be served or the purpose of the Act upheld if the Tribunal exercises its discretionary power to grant the Employer’s Request for Reconsideration. For all the Reasons stated above, the Request for Reconsideration is denied.

ORDER

34The Tribunal directs the Employer to comply with the Order in its October 11, 2006 Decision within 30 days of the date of this decision.