PAY EQUITY HEARINGS TRIBUNAL
1443-07-PE Kirk Windibank, Applicant v. Corporation of the City of Windsor, Respondent.
1140-08-PE Kirk Windibank et al, Applicant v. Corporation of the City of Windsor, Respondent.
BEFORE: Mary Anne McKellar, Vice-Chair, Pauline R. Seville and Margaret Kvetan, Members.
CITE AS: City of Windsor (No.3) 1443-07-PE, 10 July 2008, File No. 1443-07-PE (P.E.H.T.)
DECISION OF THE TRIBUNAL: July 10, 2008
Introduction
By decision dated April 25, 2008 (“the Final Decision”), we dismissed this Application. We did so after reviewing the written submissions filed by the parties respecting the responding party’s (“the City’s”) preliminary motion that the Application be dismissed for delay. The Applicant had requested that the motion be dealt with in writing. The City had requested that a hearing be convened. We issued a decision (“the Procedural Decision”) dated November 29, 2007, in which we directed that the matter be dealt with in writing and set out timelines for the exchange of submissions.
In submissions dated May 14, 2008 (“the Reconsideration Submissions”), the Applicant requested that we reconsider the Final Decision, and took the position that the preliminary motion should be revisited at a hearing. He also asserted that he did not have sufficient time to prepare his written submissions on the delay motion, which our Procedural Decision had directed him to provide by January 10, 2008, and which he did provide on January 13, 2008. He did not at any time request an extension of time for their preparation. Finally, the Applicant in his Reconsideration Submissions asserted that our Final Decision was wrong in law, and that we had denied him natural justice because the decision refers to matters other than the City’s “delay” motion, and on which he made no submissions.
Subsequent to the filing of the Reconsideration Submissions, the Applicant filed additional submissions (“the Supplemental Submissions”) dated June 3, 2008 in support of his request for reconsideration.
Subsequent to filing the Supplemental Submissions, the Applicant has also filed a new Application dated June 5, 2008 in which he objects to the City’s posting of a revised non-union pay equity plan on February 27, 2008. File No. 1140-08-PE has been assigned to this Application.
Decision
- We have reviewed the Reconsideration Submissions and the Supplemental Submissions. We have determined that this is not an appropriate case in which to exercise our discretion to reconsider our earlier decision. Although we agree that the Applicant has pointed out certain flaws in the facts stated in our decision, we do not believe that they alter the outcome of this matter.
Analysis
(a) Tribunal’s Discretion to reconsider
We take as our starting point the following observations about the Tribunal’s discretion to reconsider its decisions as set out in Helen Henderson (No. 6) (2001-02), 12 P.E.R. 124, at ¶¶ 4-9:
The Tribunal's power to reconsider its decisions is found in subsection 30(2) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended ("the Act"):
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.
The Tribunal's decisions are intended to be final. Parties are not entitled as of right to have decisions reconsidered. The Tribunal possesses and exercises its discretion to reconsider only in compelling and extraordinary circumstances. See Women's College Hospital (No. 2) (1990), 1 P.E.R. 178, at Paragraphs 4-7.
In Women's College Hospital (No. 2), supra, at Paragraph 14, the Tribunal articulated the following general test for determining whether it ought to reconsider a final decision: is there some reason to interfere in this case which has already received a decision which was intended to be final? In answering that question, the Tribunal had regard to three factors, which mirror those considered by the Ontario Labour Relations Board, which possesses a power of reconsideration virtually identical to that of the Tribunal. See subsection 114(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended:
i. 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?
ii. Since the decision, has there been a change in the circumstances such that the decision should not stand?
iii. Is the decision wrong in law?
- The above statement of the circumstances in which reconsideration will be granted has been adopted and applied in a number of subsequent decisions of the Tribunal. See 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; 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. None of those decisions have expressly addressed the issue of whether "changed circumstances" remains a valid ground for reconsideration having regard to the Act's provision in section 14.1 of a mechanism expressly for dealing with changed circumstances:
(1) If, in an establishment in which any of the employees are represented by a bargaining agent, the employer or the bargaining agent is of the view that because of changed circumstances in the establishment the pay equity plan for the bargaining unit is no longer appropriate, the employer or the bargaining agent, as the case may be, may by giving written notice require the other to enter into negotiations concerning the amendment of the plan.
In GL&V Process Equipment (No. 4), supra, the Tribunal referred to the factors enumerated in Paragraph 6 above, and then made the following comment at Paragraph 8:
Generally speaking, whenever the Tribunal issues a decision, one party is pleased with the outcome, and one party is not. In order to have the decision reconsidered, however, the party that does not like the outcome must show that the facts had not crystallized (i.e. could not have been ascertained) at the time of the hearing (factors (i) and (ii) above), or must show that the decision is wrong in law (factor (iii) above).
With this framework in mind, we now turn to examine the Decision briefly, and the bases on which the Applicants assert that it should be reconsidered.
(b) The Process
We want to deal first with the Applicant’s complaints about the process by which we reached the Final Decision. As indicated above, we dealt with the City’s motion using the process (written submissions) requested by the Applicant (and opposed by the City). The City filed written materials, including affidavit evidence. The Applicant did not seek to cross-examine the affiants. The Applicant filed written submissions and did not request an extension of time for doing so. His submissions did not contradict any of the factual assertions contained in the affidavits filed by the City, nor did he express any misgivings about the matter being dealt with in writing pursuant to the Procedural Decision. We reviewed all the submissions and determined that there were no factual disputes that precluded our determining the matter on the basis of the submissions. We dismissed the Application.
Although the Applicant’s request for reconsideration is framed as a timely request for reconsideration of our April 25, 2008 Final Decision, by objecting to the process by which that decision was reached, he is also asking to reconsider our Procedural Decision, and to vary it by holding an oral hearing into the City’s motion. Such result would clearly not be an appropriate exercise of our discretion to reconsider, for several reasons;
(a) we proceeded in the fashion requested by the Applicant;
(b) the Applicant did not make any timely objection to the Procedural Decision, nor did he seek to have the time limits varied or extended;
(c) the Applicant did not indicate any dispute with the factual assertions relied on by the City;
(d) the Applicant only raised objections to the Procedural Decision after the Final Decision had issued and the outcome was not to his liking;
(e) the time limit specified under the Tribunal’s Rules of Practice within which a party may seek reconsideration of a decision of the tribunal is 20 days from the date the decision was issued, such that a request made May 14, 2008 for reconsideration of the Procedural Decision (issued November 29, 2007) is clearly untimely; and
(f) all of the Applicant’s submissions prior to and subsequent to the release of the Final Decision are primarily legal rather than factual in nature, such that there is in any event, no reason why a written hearing was not appropriate then, or now.
(c) The Substance
We dismissed the Application on two alternative grounds. We adopted this approach because of what we described as the Applicant’s vacillation between whether his complaint was premised on an acceptance of the determination that his job class was male or on an assertion that it was female. The Applicant seems to have taken some exception to our use of the term “vacillate”, and perhaps it was not the most accurate characterization of his position. What we really meant to convey was that he appeared to be asserting what was in our view the untenable proposition that, regardless of what the gender predominance of his job class was, he had been denied pay equity. We therefore thought it appropriate to refer to the purpose of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”), which is to redress gender discrimination in compensation for female job classes (section 4). Ultimately, we stated that his Application must be dismissed on the basis that there was no grounds for relief under the Act (if the job class was male) or on the basis of delay (if the assertion was that the job class was female).
Turning now to the first ground of the Final Decision, it is true that when we noted that the Act does not preclude female job classes from being paid more than comparably-valued male job classes, we did so without specifically seeking the Applicant’s submissions on that issue. It is not clear to us that that was a denial of natural justice to have so proceeded, as we thought the matter was beyond debate, but in any event, the Applicant has now made extensive submissions on the issue. Accordingly, we have now heard from him on this issue, and if our failure to seek his submissions earlier could be construed as a denial of natural justice, it has now been rectified. Having reviewed the Applicant’s submissions, we remain convinced that he has no claim for relief under the Act if his job class was male. The pithiest expression of the Applicant’s position is set out in his comments on Paragraph 16 of our decision:
- The PE Act does not directly entitle me to wage adjustment as a member of a male job class, however:
a) If discrimination is created by the application of the PE Act, it follows that the power for corrective measures rests with the Hearings Tribunal.
b) If the gender designation of my job class remains male, I do not claim to be entitled to a wage adjustment under the PE Act. To order such an adjustment however is within the authority of the PEHT, as discussed below. I do claim to be entitled to equal treatment under all the laws of Ontario and Canada, regardless of my gender. The PE Act only authorizes pay equity for female job classes, not pay superiority.
c) As mentioned above in (14), there can be orders by the Hearings Tribunal requiring compensation to non-female job class/es. For example, section 25(2)(c) allows orders of compensation to non-female job class/es to restore amounts lost by contraventions of subsection 9(1) where the employer has wrongfully reduced compensation. This would most often be an order of compensation to a male job class. More relevantly, section 25(2)(g) grants the Hearings Tribunal great latitude for corrective measures in that the Hearings Tribunal "may order a party to a proceeding to take such action or refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances". Thus the Hearings Tribunal can make orders to correct for abuses of the Act, including an implementation process that created discrimination. Those orders can include compensation that restores equal treatment.
d) Based on the above, the conclusion reached in decision paragraph 16 is incorrect (i.e. "it follows that his application must be dismissed if the application is properly characterized as one alleging discrimination against males or male job classes."
The Tribunal does not have inherent jurisdiction to address or remedy all alleged pay inequities, or even all such inequities that have a gendered component. We can only order payments to which individuals or job classes are entitled under the Act. While the Act may not preclude an employer from voluntarily establishing internal equity and making adjustments to male job classes that are not mandated by the Act, the Tribunal cannot compel that result. We simply do not have the broader equitable jurisdiction that the Applicant asserts in the excerpt above.
In summary, there is no basis for altering our conclusion that if the Applicant is not challenging the identification of his job class as male, then this Application simply cannot succeed.
We now turn to the question of our determination that if the Application was characterized as a challenge to the determination that the gender predominance of the Applicant’s job class was male it must fail as a consequence of the Applicant’s delay in making that assertion. This requires a bit of context.
The Application takes the form of an objection made in 2007 to a Review Officer’s Order that issued in 2000. The Order dealt with the question of the gender predominance of the Applicant’s job class, in which he was the sole incumbent, and where the gender predominance of that job class had been determined in 1992 to be male. The Applicant in his Application materials stated that he had raised many points with the Review Officer, but that she had identified gender predominance question as the sole issue. His Application then goes on to make submissions on the question of whether his job class ought to have been considered female. It was on the basis of our review of these submissions that we concluded that the Applicant himself had not raised with the City until 2007 the issue of whether his job class ought to have been identified as female in 1992. We did appreciate that the Applicant complained to the City starting in 1999 about the unfairness that he felt had been visited upon him by the manner in which the City had implemented pay equity for its non-union employees, but understood that this complaint had not taken the form of an assertion that his job class was female. The Applicant has now plainly asserted that he did raise with the City in 1999 the question of the gender predominance of his job class. We are prepared to accept this assertion as true.
While it may be that the Applicant challenged the gender incumbency of his job class in or around 1999 rather than in 2007 (as we stated in our April 25, 2008 decision), that still represented a 7-year delay after the gender predominance determination had been made and where there was no change in job class incumbency during that period. Further, there still remains the fact that he waited an additional 7 years after the Order was issued before applying to the Tribunal. In that time he was pursuing relief in other forums, none of which possessed the expertise or the statutory jurisdiction to deal with the gender predominance of his job class. His decision not to apply to the Tribunal immediately but to invoke those other processes therefore suggests acquiescence with the Order on that point. The observations that we made in Paragraphs 21 (c), (d), and (e) and Paragraph 22 of our Final Decision remain apt.
To the extent this application challenges the Non-Union Plan's identification of his job class as male, it is:
c. made more than 9 years after the applicant as the sole incumbent of the position last performed the job;
d. made more than 7 years after the Order dealing with the applicant's complaint was issued by the Review Officer; and
e. made after most City personnel involved in supervising the applicant in his position or in preparing the Non-Union Plan have retired.
In these circumstances, the applicant has clearly been guilty of an inordinate delay in making this application. That delay has been inexcusable. No explanation at all has been provided for why the issue of the gender predominance of the applicant's job class was not raised before January 22, 1999. The only explanation provided for why 7 years have elapsed between when the Order was issued and when this application was filed is that the applicant was pursuing relief in other forums. Forum shopping is not a particularly compelling reason for the delay, and may itself constitute an abuse of process. There is no doubt that the applicant's delay has occasioned not only likely, but actual, prejudice to the City if the Tribunal were now to permit an adjudication of whether the applicant's job class ought to have been identified as female. Furthermore, the applicant has not sufficiently particularized why the Tribunal should characterize his position as a female job class, and he has not disputed the City's characterization of his duties as involving the supervision of a woodworking shop. In short, we are persuaded that it would be an abuse of the Tribunal's process to permit this application to proceed.
The Applicant’s Reconsideration Submissions contain extensive legal submissions (including references to a number of legal authorities) on the subject of delay and abuse of process. These topics were squarely raised in the City’s motion materials and ought to have been addressed by him in his submissions in response to the motion. The discretion to reconsider is not appropriately exercised to permit a party to shore up its case by making submissions it had an opportunity to make at an earlier point, but which it failed to raise.
In his Supplemental Submissions, the Applicant asserts that he has come into possession of new facts. The new facts he sets out, however, are not pertinent to the questions addressed by us when we decided to dismiss his Application, which were essentially: the length of the delay between the determination of the gender predominance of his job class and his challenge to that determination; the length of the delay between the issuing of the Order and the Application to the Tribunal; and the existence and extent of any prejudice to the City caused by either or both of those delays.
The request for reconsideration of our Final Decision is denied.
The New Application
The Applicant (who retired from his employment with the City some years ago) has filed an Application (Board File No. 1140-08-PE) dated June 5, 2008 in which (among other things) he purports to object to the revised non-union pay equity plan posted on February 27, 2008, and appears to rely on this re-posting as triggering an opportunity for him to object to the determination that the job class he occupied in 1998 and previous to that ought to have been identified as female.
This new Application raises a number of questions for us. The most pressing one is whether we have jurisdiction to deal with it as sections 15(7) and 16(1) of the Act contemplate that such objection should be dealt with by Review Services:
15(7) Objections – Any employee or group of employees to whom a pay equity plan applies, within thirty days following a posting in respect of the plan under subsection (6), may file a notice of objection with the Commission whether or not the employee or group of employees has submitted comments to the employer under subsection (4).
16(1) Investigation by review officer and settlement – If the Commission,
(a) is advised by an employer or a bargaining agent that no agreement has been reached on a pay equity plan or an amendment to a pay equity plan; or
(b) receives a notice of objection to a pay equity plan for employees who are not represented by a bargaining agent or a notice of objection to an amendment of such a plan.
The Applicant is directed to make written submissions in respect of the jurisdictional question above and to file them by no later than August 15, 2008. The City need not file any response to those submissions unless specifically directed to do so by the Tribunal.
The Applicant should also be aware that even if he were to persuade us that the Tribunal has jurisdiction to deal in the first instance with an objection to a posted plan, in the circumstances of this case, the Applicant’s purported objection raises additional concerns:
(a) does an individual whose employment ceased some years ago have standing under the Act to comment on or object to a re-posted pay equity plan that contains no revisions pertinent to any job class he occupied during the course of his employment?;
(b) is it not an abuse of the Tribunal’s process for an Applicant to raise an issue he has already sought to have litigated and where the Tribunal has already adjudicated on his right to do so?
Dated at Toronto this 10^th^ day of July, 2008.
“Mary Anne McKellar”______
Mary Anne McKellar
“Pauline R. Seville”__________
Pauline R. Seville
“Margaret Kvetan”___________
Margaret Kvetan