Pay Equity Hearings Tribunal
3419-07-PE Ontario Public Service Employees Union, Applicant v. Pioneer Youth Services (Toronto) Inc., Respondent.
Before: Mary Anne McKellar, Vice-Chair, Pauline R. Seville and Margaret Kvetan, Members.
Cite as: Pioneer Youth Services (Toronto) Inc. 3419-07-PE (September 17, 2008) (P.E.H.T.)
Decision of the Tribunal: September 17, 2008
This is a file in which the applicant (“OPSEU”) seeks to recover on behalf of its members amounts owing to them by their former employer (the responding party “Pioneer”) in respect of pay equity adjustments required by the Pay Equity Act, R.S.O. 1990, c. P.7 (“the Act”). A Review Officer determined that adjustments (on a per-hour basis) were owing to two female job classes dating back to January 1, 1994, and determined the rate of adjustment for each of those job classes. In other words, the Review Officer determined the formula or equation to be applied to the calculation of the retroactive pay owing to the employees in the bargaining unit. The Review Officer then issued an Order directing OPSEU and Pioneer to do certain things jointly to complete the implementation of pay equity.
OPSEU filed this application with the Tribunal alleging that Pioneer had not complied with the Order, and we have already found this to be the case and so ruled. We did so orally after hearing evidence at a hearing which Pioneer did not attend, despite having received notice of it. These matters are canvassed in our earlier decision dated July 17, 2008.
OPSEU cannot tell us precisely what Pioneer’s total liability to the bargaining unit employees in the two female job classes is, nor can it tell us how much is owed to each individual employee (or former employee) in those job classes. Employees have come and gone from the job classes over the years, and many have been employed on a part-time basis. OPSEU does not have records of the actual hours worked by each individual employee in the two affected job classes in each of the fourteen years that preceded this application to the Tribunal. Although it undertook to endeavour do so, OPSEU has determined that it cannot reconstruct from its dues records which employees are owed money, nor (pursuant to the formula in the Order) how much each of them are owed.
OPSEU seeks to have the Tribunal summons the principal of Pioneer to attend at a hearing with documents containing the information necessary to determine how much each affected employee is owed. OPSEU has identified this individual as Paul “Hensall”, but the corporate searches filed indicate his last name is spelled “Hensel”.
The Statutory Powers Procedure Act, R.S.O. 1990, c S.22 (“the SPPA”) authorizes a tribunal to summon witnesses:
- (1) A tribunal may require any person, including a party, by summons,
(a) to give evidence on oath or affirmation at an oral or electronic hearing; and
(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceeding and admissible at a hearing.
(2) A summons issued under subsection (1) shall be in the prescribed form (in English or French) and,
(a) where the tribunal consists of one person, shall be signed by him or her;
(b) where the tribunal consists of more than one person, shall be signed by the chair of the tribunal or in such other manner as documents on behalf of the tribunal may be signed under the statute constituting the tribunal.
(3) The summons shall be served personally on the person summoned.
(3.1) The person summoned is entitled to receive the same fees or allowances for attending at or otherwise participating in the hearing as are paid to a person summoned to attend before the Superior Court of Justice.
(4) A judge of the Superior Court of Justice may issue a warrant against a person if the judge is satisfied that,
(a) a summons was served on the person under this section;
(b) the person has failed to attend or to remain in attendance at the hearing (in the case of an oral hearing) or has failed otherwise to participate in the hearing (in the case of an electronic hearing) in accordance with the summons; and
(c) the person's attendance or participation is material to the ends of justice.
(4.1) The warrant shall be in the prescribed form (in English or French), directed to any police officer, and shall require the person to be apprehended anywhere within Ontario, brought before the tribunal forthwith and,
(a) detained in custody as the judge may order until the person's presence as a witness is no longer required; or
(b) in the judge's discretion, released on a recognizance, with or without sureties, conditioned for attendance or participation to give evidence.
(5) Service of a summons may be proved by affidavit in an application to have a warrant issued under subsection (4).
(6) Where an application to have a warrant issued is made on behalf of a tribunal, the person constituting the tribunal or, if the tribunal consists of more than one person, the chair of the tribunal may certify to the judge the facts relied on to establish that the attendance or other participation of the person summoned is material to the ends of justice, and the judge may accept the certificate as proof of the facts.
(7) Where the application is made by a party to the proceeding, the facts relied on to establish that the attendance or other participation of the person is material to the ends of justice may be proved by the party's affidavit.
- The Tribunal’s Rules of Practice also contain the following provisions respecting Summons to Witness:
The Tribunal will provide a signed Summons to Witness (Form 4) in blank to any party upon request to the Registrar. A party may require a witness to bring any documents or other things listed on the Summons to the hearing.
The party is responsible for ensuring that the Summons is served properly. An Affidavit of Personal Service (Form 5) must be sworn by the individual who served the Summons. The Tribunal may require the Affidavit to be filed at the hearing.
The Summons must be served in person together with the correct amount of conduct money no later than two (2) days before the date when the witness is required to testify. Conduct money must be paid in cash or by certified cheque. The amount of conduct money is equivalent to the personal allowance paid to a witness for attendance in the Superior Court of Justice as set out in Tariff A of the Rules of Civil Procedure.
- In accordance with the Tribunal’s Rules and its practice, OPSEU should contact the Registrar to obtain a signed summons to witness and to set a hearing date convenient to it. OPSEU must complete the summons (including specifying the documents it wishes Mr. Hensel to bring with him to the hearing), and serve it personally on Mr. Hensel within the time limits specified by the Tribunal’s Rules, along with the appropriate conduct money, and file an affidavit of service. If Mr. Hensel does not then appear at the hearing, OPSEU may initiate steps to have a bench warrant issue.
Dated at Toronto this 17th day of September, 2008.
“Mary Anne McKellar”______
Mary Anne McKellar
“Pauline R. Seville”__________
Pauline R. Seville
“Margaret Kvetan”___________
Margaret Kvetan