Pay Equity Hearings Tribunal
2837-06-PE Pay Equity Office, Applicant v. Precious People Place Child Care Centre Inc., Respondent
Before: Patricia E. DeGuire, Vice-Chair, and Members Catherine Bickley and Diane Rose
Appearance: Senka Dukovich, for the Applicant and Natasha Rosemary Reid on her own behalf
Cite as: Precious People Place Child Care Centre Inc., (April 26, 2007), 2837-06 (P.E.H.T.)
DECISION OF THE TRIBUNAL APRIL 26, 2007
INTRODUCTION
1The Applicant is the Pay Equity Office (the “PEO”). It brings this Application under subsection 24(5) of the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”). The PEO requests that the Pay Equity Hearings Tribunal (the “Tribunal”) find that Precious People Place Child Care Centre Inc. (the “Employer”) has not complied with a review officer’s order dated August 21, 2006 (the “Order”).
2The PEO asserts that a review officer had determined that the Employer has not prepared and posted a pay equity plan in its establishments as the Tribunal had ordered in its March 5, 2004 decision. Nor has the Employer made any adjustments as might have been required if it had prepared the pay equity plan. As a result, a review officer issued the Order.
3The directive part of the Order is reproduced below verbatim:
The Respondent Employer is hereby ordered to post and implement the pay equity plan, appended to this Order as Appendix “A”, in all of its Ontario workplaces immediately. The Employer is ordered to use the adjustment schedule, appended to this Order as “Appendix B” to calculate proactive payments to all current and former employees. The Employer is further ordered to make adjustments of $1.18/hr. to all current employees effective immediately and to calculate and pay adjustments and retroactive money owed for the calendar years 2005 and 2006. The Employer is to notify all current and former employees (by registered letter) of their retroactive entitlements and the need to make arrangements for payments.
The Employer is further ordered to notify the Pay Equity Commission, and provide proof, that the pay equity plan has been posted and that all former employees have been notified.
Pursuant to subsection 24 (5) of the Act, if the terms of this Order have not been met within forty-five (45) days of the issuance of this Order, I may refer this matter to the Pay Equity Hearings Tribunal for enforcement.
4The Employer did not file a response to the Application, or attend this proceeding. On February 15, 2007, the Tribunal conducted the hearing despite the Employer’s absence.
BACKGROUND
5A review officer had issued an order dated January 28, 2003, directing the Employer to prepare and post a pay equity plan, using the proxy method of comparison, and to make pay equity adjustments, if any, as required by the Act. The Employer failed to comply with that order. The PEO brought an Application before the Tribunal to enforce that order under subsection 24(5) of the Act.
6In that Application, the Employer did not participate at all. The Tribunal ruled that it was satisfied that the Employer had received proper notice of the Application and the proceeding. It proceeded to hold the hearing in the Employer’s absence. The Tribunal confirmed the PEO’s order. (See Precious People Place Child Care Centre Inc. (March 5, 2004), 0763-03 (P.E.H.T.).
THE APPLICANT’S EVIDENCE and submissions
Mr. Berenbaum’s Evidence
7At the February 15, 2007 hearing, Mr. Fred Berenbaum, the senior review officer who had issued the Order, gave evidence for the PEO. He recounts that since the Tribunal’s March 5, 2004 order, he has made various efforts to assist the Employer toward preparing and posting a pay equity plan, and to comply with that Order. He has made recommendations via e-mails, telephone calls, and registered letters: the latter, to create a record that information was sent to and received by the Employer.
8Mr. Berenbaum recounts that he had given “abundant assistance” to the Employer, which includes preparing a pay equity plan; recommending a seminar and the giving of educational materials; and advising the Employer of various ways to achieve compliance with the Act.
9Because the PEO had not received any response from the Employer, Mr. Berenbaum and a colleague made unannounced visits to the Employer’s establishments in Toronto and Oakville. They met with the Employer and explained its obligations under the Act and why the Employer had to fulfil those obligations. The Employer undertook to post the pay equity plan Mr. Berenbaum had prepared and pay the adjustments required by the plan. However, the Employer reneged.
10Mr. Berenbaum states that he had visited the Employer’s two establishments again to determine whether the Employer had posted the pay equity plan. The plan was not posted at either establishment. He had tried contacting the Employer, but his calls were not returned. Mr. Berenbaum states he had no choice but to issue the Order. The Order was issued under subsection 24(3) of the Act. The directive part of the Order is reproduced above at paragraph 2. He asserts that there has been no contact from the Employer since issuing the Order. He has no reason to believe anything has changed since then.
Ms Reid’s Evidence
11Ms Reid states that she had worked for the Employer from October 1997 to 1999. In 1999, she had brought an Application to the PEO after she learned about pay equity and realised that it was not done at the Employer’s workplace.
12She received a copy of the Order. Since then, she has not received any money from or had communication with the Employer. Ms Reid has lived at the same address since she was a young child. About a year or so ago, she had made contact with an employee who was employed by Precious People Place Child Care Centre Inc., and that person had not heard about pay equity. Ms Reid, by facsimile, had served the Employer with a copy of her response to this Application.
PEO’s Submissions
13The PEO submits that it makes efforts to help Employers comply with the Act; its efforts are not to punish them. It asserts that review officers have made extraordinary efforts to help this Employer achieve compliance with the Act. Such efforts include developing a pay equity plan, and tailoring a compliance plan for making adjustments. Yet, the Employer has shown a clear pattern of disregard, not only in its failure to comply with Orders issued by the PEO and the Tribunal, but also when faced with attending proceedings.
14Specifically, the PEO submits that the Employer has not responded to this Application and has failed to attend this hearing. The Employer did not respond to the Application in 2004, or comply with the Tribunal’s order in March 2004. The PEO points out that the initial Application regarding the Employer’s failure to prepare and post a pay equity plan, and to make pay equity adjustments was brought in 1999. To date the Employer has not complied, and it has breached the undertakings it has given. The PEO asks the Tribunal to confirm its Order. In addition, the PEO submits that it has gone to “extraordinary lengths” to encourage and help this Employer to achieve compliance. Thus, it urges the Tribunal to comment on the Employer’s impervious attitude and its continual failure to comply with Orders issued by the PEO and the Tribunal.
analysis and DISPOSITION
15The PEO brings this Application under subsection 24(5) of the Act. Clause 24(5.2) of the Act limits the scope of the Tribunal’s hearing on a subsection 24(5) Application. The Tribunal shall not consider the merits of the Order that is the subject matter of the reference. The entity against whom the Order was made, that is the Employer, has the burden of proving that it has complied with the Order: clause 24(5.3). Thus, the Tribunal need only be satisfied that the Employer has not complied with the Order in question.
16The Tribunal is satisfied that the Employer received proper notice of the Application and this proceeding.
17The Tribunal accepts the evidence led by Mr. Berenbaum, and Ms Reid. The Tribunal finds that they were credible witnesses whose evidence was reliable.
18The Tribunal is satisfied that the Employer has failed to comply with the Order. Specifically, the Tribunal finds that the Employer has failed or refused to prepare and post a pay equity plan and make the pay equity adjustments as required by the Order. The Tribunal finds that the PEO prepared a pay equity plan for the Employer and the Employer has received it. The Tribunal finds that the Employer undertook to post the said plan and make the adjustments, which flow from the plan. The Tribunal finds that the Employer breached that undertaking.
19The Tribunal has considered the PEO's submission and request to make comments about the Employer’s continual refusal to comply with the Act, and more specifically, the Pay Equity Commission’s Orders. That has been considered within the context of the purpose of the Act. The Tribunal is not convinced that, in the circumstances, chiding the Employer would have any deterrent or salutary effect towards compliance with the Act.
20The Tribunal notes that Mr. Berenbaum has prepared a pay equity plan for the Employer’s establishments. Significantly, he has determined that the Employer owes a specific amount of money for pay equity adjustments. Having made that specific determination, invoking section 19 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), and Rule 84 of the Pay Equity Hearings Tribunal Rules of Practice, November 2002 now might be more effective.
21Section 19 of the SPPA authorises a party in a proceeding to take certain steps to enforce the Tribunal’s decision or order. Section 19 states:
19 (1) A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such.
(2) A party who files an order under subsection (1) shall notify the tribunal within 10 days after the filing.
(3) On receiving a certified copy of a tribunal’s order for the payment of money, the sheriff shall enforce the order as if it were an execution issued by the Superior Court of Justice 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).
22Rule 84 of the Tribunal Rules of Practice states: “Any party may request the Registrar to provide a certified copy of a decision or order of the Tribunal for filing with the Registrar of the Superior Court of Justice to be enforced as an order of the Court in accordance with the Statutory Powers Procedure Act.” Together, section 19 of the SPPA and Rule 84 of the Tribunal Rules of Practice set out the process any party, including the PEO, may use to enforce the Tribunal’s Order.
23According to subsection 25(2) of the Act, the Tribunal finds that the Employer has not complied with the review officer’s Order. Relying on clause 25(2)(d), the Tribunal confirms the review officer’s Order. Therefore, the Tribunal makes the following Order:
a. The Employer, Precious People Child Care Centre Inc. shall post the pay equity plan that the review officer prepared for its establishments within fifteen (15) days of the date of this decision.
b. The Employer, Precious People Child Care Centre Inc. shall start to make payment of the adjustments required by the said pay equity plan, which is retroactive to January 1, 1994, within forty-five (45) days of this decision. The amount of payment shall take into consideration the provisions in section 13 of the Act, concerning the minimum and maximum adjustments.
Dated at Toronto, Ontario this 26th day of April, 2007
“Patricia E. DeGuire”
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Patricia E. DeGuire, Vice-Chair
“Catherine Bickley”
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Catherine Bickley, Member
“Diane Rose”
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Diane Rose, Member```