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: April 29, 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 senior review officer John Tossell dated January 6, 2009 (the “Order”) be stayed, or in the alternative, that the Order be set aside.
ASEO 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 “Plan”). ASEO phased in pay equity adjustments under the Plan until the last adjustment on January 1, 2005. ASEO has failed to provide pay equity adjustments, as required by the 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, the 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.
(iii) ASEO asserts that the Order should be stayed in that the delay between the filing of the complaint and the issuance of the Order offends the notion that the employer is entitled to see the justice system works fairly, efficiently and with reasonable dispatch. The employer relies on article 11 of the Charter of Rights and Freedoms.
The Canadian Union of Public Employees (CUPE) and its Local 1997-02 (“CUPE”) have filed a response to the application. In addition, by letter dated April 15, 2009, CUPE amended its response to include a submission that the total amount of outstanding payments owed by ASEO is approximately $12,000. CUPE further submits that the application does not make out a prima facie case.
ASEO is hereby directed to deliver to CUPE and file with the Tribunal submissions as to why this matter ought not to be dismissed on the basis that it fails to make out a prima facie case. Such submissions are to be delivered to CUPE and filed with the Tribunal no later than May 22, 2009. CUPE is not required to respond to the ASEO’s submissions unless directed to do so by the Tribunal.
Dated at Toronto this 29th day of April, 2009.
“Diane L. Gee”
Diane L. Gee, Chair
“Margaret Kvetan”
Margaret Kvetan, Member
“Pauline R. Seville”
Pauline Seville, Member