Pay Equity Hearings Tribunal
3311-08-PE Addiction Services of Eastern Ontario, Applicant v. Canadian Union of Public Employees (CUPE) Local 1997-02, Respondent.
BEFORE: Diane L. Gee, Chair, Margaret Kvetan and Pauline R. Seville, Members.
DECISION OF THE TRIBUNAL: June 9, 2009
This is an application by Addiction Services of Eastern Ontario (“ASEO”) to the Pay Equity Hearings Tribunal (the “Tribunal”) filed pursuant to section 24(6) of the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”). ASEO requests that the order of a senior review officer dated January 6, 2009 (the “Order”) be stayed, or, in the alternative, that the Order be set aside.
The Canadian Union of Public Employees and its Local 1997-02 (“CUPE”) filed a response to the application in which CUPE asked that the application be dismissed on the basis that, even if all of the facts as stated in the application are assumed to be true, the application does not make out a prima facie case. In addition, CUPE advised the Tribunal that the outstanding pay equity amount owed by ASEO is approximately $12,000.
By decision dated April 29, 2009, the Tribunal directed ASEO to deliver to CUPE and file with the Tribunal, no later than May 22, 2009, submissions as to why this matter ought not to be dismissed on the basis that it fails to make out a prima facie case. As of the date of this decision, no submissions have been filed by ASEO in response to the Tribunal’s April 29, 2009 direction.
For the reasons set out below, it is the Tribunal’s determination that this matter is dismissed on the basis that it does not make out a prima facie case.
In its application, ASEO states that it agrees with the following facts as set out in the Order. ASEO is a not-for-profit agency that relies almost exclusively on government funding. On November 16, 1998, ASEO was declared to be a seeking employer for the purpose of using the proxy method of comparison. ASEO and Canadian Union of Public Employees negotiated and signed a pay equity plan on September 10, 1999 (the “ASEO Plan”). ASEO phased in pay equity adjustments under ASEO Plan until January 1, 2005. ASEO has failed to provide pay equity adjustments, as required by ASEO Plan and the Act, on January 1, 2006, January 1, 2007 and January 1, 2008 or until pay equity is achieved for all job classes in the Plan.
In its application, ASEO has identified the following three issues or matters that it asserts are in dispute:
(i) ASEO asserts that CUPE and its members are estopped from claiming that they are entitled to annual payments under the Plan due to a memorandum of agreement executed by the employer union in an action in the Ontario Superior Court of Justice between the employer union and the Attorney General of Ontario, the Minister of Finance and the Lt. Governor in Council.
(ii) ASEO claimed that the review officer erred when he failed to consider whether the filing of a complaint at the local level, as opposed to renewing the province-wide action against the government, was vexatious and in bad faith contrary to article 23(3)(a) of the [Act](https://www.canlii.org/en/on/laws/stat/