Canadian Union of Public Employees, Local 1734 v. York Region District School Board, 2010 CanLII 29715

Pay Equity Hearings Tribunal

1816-09-PE Canadian Union of Public Employees, Local 1734, Applicant v. York Region District School Board, Respondent.

BEFORE: Mary Anne McKellar, Vice-Chair, Pauline R. Seville and Margaret Kvetan, Members.

DECISION OF THE TRIBUNAL: May 31, 2010

1We held a hearing into this matter on May 10, 2010. At the outset of the hearing, counsel for the responding party alerted the panel to an issue he wished to raise which related to the identification of male comparators in the parties’ original pay equity plan. It was not entirely clear to us how this issue might affect the scope of evidence to be heard. After some discussion with counsel, we directed that the responding party seek leave in writing to amend its pleadings and that the applicant be provided with an opportunity to respond to that request. A further opportunity for reply was afforded to the responding party. By Friday, May 28, 2010, all of the written submissions had been filed and were placed before us. The hearing is scheduled to resume this Friday, June 4, 2010.

2The submissions exchanged have focused on the principles to be applied where a request to amend pleadings is made. We can address this question briefly. Assuming of course that the issue sought to be raised in the amendment is one within the Tribunal’s jurisdiction, the only relevant consideration in our view is whether allowing it would prejudice the other party.

3We are inclined to think there is no jurisdictional impediment to our allowing an amendment based on our understanding of the issue the responding party wants to pursue. However, the actual language of its proposed amendment has not been set out by the responding party, which makes it impossible for us to say “yes” or “no” to the request. We remain unclear as to the impact of the issue on the scope of evidence to be adduced in the hearing. There are differences of opinion among the panel on what that impact might be. It is not possible for us to assess the potential for prejudice in these circumstances.

4We could direct the responding party to file the paragraphs it seeks to add to its response, and to specify the evidence proposed to be adduced to establish the facts it asserts in those paragraphs. We would then be in a position to determine whether to permit the amendment. The difficulty with that approach is that we would inevitably have to adjourn Friday’s hearing. We think there is a way to preserve that hearing day and move ahead with this matter while deferring consideration of the amendment.

5There appear to us to be three broad issues to be addressed in this application:

(a) Was there an agreement by the applicant not to pursue the question of the difference in structure between the pay grid for the applicant’s bargaining unit and that for the bargaining unit represented by CUPE Local 1196? This is a factual question.

(b) Does the Act require that the pay grid for female job classes in Local 1734 that have an identified male comparator in the CUPE Local 1196 unit to be harmonized with the pay grid attaching to that male job class? This is a legal question.

(c) If the answer to (b) is affirmative, which female job classes are affected by this determination?

6As we understand it, the issue the responding party would like to amend its pleadings to address is whether female job classes in Local 1734 that have an identified male comparator in Local 1196, but that might have found a male comparator within Local 1734, can benefit from any requirement that pay grids be harmonized across units. It therefore appears that the impact of the issue the responding party would like to raise by amending its pleadings merely modifies the question identified in paragraph (c) above, by adding an inquiry into (d): whether any Local 1734 female job classes with identified male comparators in Local 1196 are excepted from the requirement to have their pay grid harmonized with that of the male comparator because there may have been a male comparator available to them within the Local 1734 bargaining unit.

7In these circumstances, it appears to us that we can bifurcate this hearing and carry on and determine questions (a) and (b) first. These issues will have to be dealt with in any event, because there are Local 1734 female job classes that have identified male comparators in Local 1196 and which only could have found male comparators there.

8It may never become necessary to deal with the remedial questions posed in (c) and (d). If it does become necessary, however, we can hold a hearing into those questions and the matter that the responding party seeks to amend its pleadings to address can be dealt with then.

9Absent any objection from the parties, therefore, we are not granting leave to amend the response at this time (but we are also not dismissing the request), but we shall continue the hearing into questions (a) and (b) identified in paragraph 5 above on Friday.

10Following Friday’s hearing, we note that the next scheduled day of hearing in this matter is October 25, 2010. There is a strong suggestion in the recent exchange that this application might have benefited from a pre-hearing conference. That may yet be a useful step to pursue, and we would invite the parties to request that one be scheduled.