Queensway Nursing Home v. Group of Confidential Employees, 2010 CanLII 56873

Pay Equity Hearings Tribunal

File No.: 0439-09-PE Date: October 1, 2010

Queensway Nursing Home, Applicant v. Group of Confidential Employees, Respondents v. Service Employees International Union, Local 1 Canada, Interested Party.

Before: Diane L. Gee, Chair.

DECISION OF THE TRIBUNAL

1On July 15, 2008, a Review Officer issued an Order (the “Order”) in which it was determined that the pay equity plan posted by Queensway Nursing Home (the “Queensway”) on July 21, 1995 applicable to its non-union employees (the “1995 Plan”) did not comply with the requirements of the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”). The Order directs Queensway to prepare and post a new pay equity plan based on circumstances as they existed in 1994, calculate pay equity retroactivity amounts due under such a plan from 1994 to 2008 and pay those amounts with interest to employees and former employees of Queensway. Queensway has filed an application with the Pay Equity Hearings Tribunal (the “Tribunal”) seeking to have the Order set aside and asking the Tribunal to determine that Queensway has implemented a valid pay equity plan.

2When the application was filed with the Tribunal, Queensway was directed to provide notice of the application to its existing and former employees who may be affected by the application. Such notice was given. The Pay Equity Office gave notice of the application to the anonymous employee who had filed the complaint leading to the Pay Equity Commission’s involvement. Notwithstanding the giving of such notice, no existing or former employee of Queensway filed a response to the application with the Tribunal. The Service Employees International Union, Local 1 Canada (the “SEIU”) was given notice of the application as it represents the unionized employees of Queensway who are covered by an identical pay equity plan in respect of which no Order has been made. The SEIU advised the Tribunal that it did not intend to participate in this matter.

3A pre-hearing conference was held on December 3, 2009. Queensway was the only party in attendance. No one was in attendance on behalf of any employee or former employee of Queensway including the individual who filed the initial complaint. At the request of Queensway, the Tribunal determined that this matter would be dealt with by way of a written hearing and directed Queensway to file any further submissions that it wished to rely upon in support of its application. Queensway was also asked if it would agree to having this matter determined by a panel of one person pursuant to section 4.2.1 of the Statutory Powers Procedures Act R.S.O. 1990 c. S.22. Queensway subsequently filed submissions, and sworn affidavits in support of the facts set out therein, and gave its consent to having this matter determined by a panel of one person.

4Following the filing of submissions by Queensway, the Tribunal forwarded the submissions to the Pay Equity Commission and provided it with an opportunity to respond should it wish to do so. The Commission advised the Tribunal that it would not be responding.

5For the reasons that follow, it is my determination that, as a result of the delay leading up to the issuance of the Order it is impossible for Queensway to comply with the terms of the Order. Further, the delay leading up the issuance of the Order has compromised the ability to hold a fair hearing and the delay amounts to an abuse of process. As a result, the Order is revoked.

Background

6Before turning to the specific facts of this case a very cursory overview of the Act, the operations of the Pay Equity Commission is useful.

7The Act was enacted in 1987 in order to redress gender discrimination in the compensation of female employees employed in female job classes. The Act requires employers covered by the Act to prepare, post and implement “pay equity plans”. The manner in which a pay equity plan is to be created is spelled out step by step in the Act. Different steps are mandated depending upon whether an employer is a small employer or a large employer; whether the employer is a private sector employer or a public sector employer; and whether the employer is unionized or not. By following the steps set out in the Act for creating a pay equity plan, an employer determines what jobs are entitled to wage adjustments and the amount of any wage adjustments that are to be made. The Act mandates that specific information be set out in the pay equity plan and that the plan be posted in the workplace. Employees are given a period of time to make comments on the plan failing which the plan is deemed to have been approved by the Commission.

8The Tribunal has held that a “deemed approved plan” is subject to review where it is established that Part I of the Act has been contravened (see: Ottawa Board of Education (No. 2), (1996), 7 P.E.R. 9). Hence, notwithstanding that a pay equity plan is a deemed approved plan, it may still be subject to challenge. An employer is required to make wage adjustments of no less than 1% of the employer’s payroll during the preceding 12 months each year until pay equity is achieved.

9The Act sets the date on which employers are required to have completed their pay equity plans and made the first pay equity adjustment. Many employers were required to make the first adjustment in compensation on January 1, 1993 or 1994.

10The Act establishes a scheme whereby the Pay Equity Commission can monitor employers in order to determine whether they have established a pay equity plan and paid the necessary wage adjustments. Where an employer is found not to have created a pay equity plan or made the payments required, an Order can be issued requiring the employer to do so. In addition, individuals can file complaints with the Commission. Such complaints may, for example, allege that the employer has no pay equity plan or is not paying the wage adjustments required under the plan. The Pay Equity Office appoints a Review Officer to investigate the complaint and, where an issue is found, an Order can be issued.

11Where an employer does not comply with an Order, the Commission can refer the matter to the Tribunal seeking a decision, which can be filed in the courts and enforced as a court order, confirming the Order. In addition, an employer against whom an Order has been issued can file an application with the Tribunal seeking to establish that the Order is incorrect and ought to be varied or set aside.

12As was done in this case, where a Review Officer finds that an employer does not have a valid pay equity plan, the Officer usually orders the employer to create one. The employer is required to determine job classes, job descriptions and job values based on circumstances as they existed as of the date that it was required to have a pay equity plan. Again, in most cases, that date was January 1, 1993 or 1994. The employer is then required to prove that, beginning in the year that it was required to have a pay equity plan in place, the employer allocated 1% of payroll to making the necessary wage adjustments. If the employer cannot do this, the Review Officer assumes that the employer did not do so. The employer is ordered to make payments to all employees and former employees plus interest. Parenthetically, Queensway argues that where a deemed approved pay equity plan is in place, a Review Officer must find that Part I of the Act has been contravened in order to issue an Order and that the approach described above, and taken by the Review Officer in the instant matter, of issuing an Order in the absence of any such finding, is inconsistent with the Tribunal’s jurisprudence. This argument appears to have considerable merit, however, given the basis upon which I have determined this matter I have not dealt with this particular argument.

13The Act does not contain a provision that requires employers to maintain the documents and records that they relied upon in order to create a pay equity plan. Similarly, the Act does not contain a provision that requires employers to maintain records in order to establish that they made wage adjustments as required by a pay equity plan.

The Facts

14Queensway is licensed and operates as a nursing home. It is one of five sister nursing homes which form part of a small chain owned and operated by the same corporation.

15As a nursing home, Queensway is a “public sector” employer within the meaning of the Act. By Order of the Commission dated June 30, 1995, Queensway was determined to be a seeking employer under subsection 21.12(2) of the Act to which the proxy method of comparison applied.

16That same year, Queensway’s unionized sister nursing homes participated in a group with several other nursing homes and unions in a province-wide pay equity process. As a result of this process, a province-wide pay equity plan was agreed to by all participants, which came to be known as the “$1.50 Plan”.

17In negotiating the $1.50 Plan, the participating nursing homes and unions across the province agreed that the proxy method of comparison would involve comparing the key female job class of health care aide in the seeking employer’s establishment to the identical female job class in the proxy employer’s establishment. Unionized municipal homes for the aged across Ontario were selected as the proxy employer. As a result of this proxy comparison, the parties negotiated a total wage adjustment of $1.50 for all female job classes to be implemented retroactively to January 1, 1994. The parties agreed that the $1.50 wage adjustment would achieve pay equity for all unionized employees in the participating nursing homes.

18By mid-summer 1995, virtually all the unionized nursing homes in Ontario (including Queensway’s sister nursing homes) adopted the $1.50 Plan for both their union and non-union employees. Queensway applied the same proxy comparison used for the $1.50 Plan to arrive at the 1995 Plan. That is, the 1995 Plan was based on a proxy comparison which identified the position of health care aide as the key female job class and compared it to the identical female job class at unionized municipal homes for the aged across Ontario. Consistent with the $1.50 Plan, all job classes at Queensway were deemed to be female so that each and every one of them became entitled to a pay equity adjustment of $1.50 per hour.

19The 1995 Plan was posted on July 21, 1995. Subsection 21.21 of the Act provides that employees to whom the plan applies have 90 days to review and submit comments on the plan to their employer. No employee comments were submitted. Immediately following the 90-day review period, Queensway posted a notice in accordance with subsection 15(6) of the Act to advise that the 1995 Plan, as posted, had not been amended. No objections to the 1995 Plan were filed with the Commission by the employees at Queensway within the 30-day period prescribed by subsection 15(7) of the Act. As such, the 1995 Plan was deemed to have been approved by the Commission pursuant to section 15(8) of the Act.

20The first pay adjustment required by the 1995 Plan was made by Queensway to all of its employees effective January 1, 1994. Queensway continued to make pay equity wage adjustments pursuant to the 1995 Plan each year thereafter until April 2005 when the last pay equity adjustment was made.

21There is no doubt that the Pay Equity Commission was aware of the existence of the $1.50 Plan and its adoption throughout the nursing home industry. As indicated by the foregoing overview of the facts, the $1.50 Plan was adopted by virtually all unionized nursing homes in Ontario for both their unionized and non-union employees. The adoption of the $1.50 Plan was open and notorious. The $1.50 Plan is specifically referred to and described in Service Employees International Union, Local 204 v. Ontario (Attorney General), 1997 CanLII 12286 (ON S.C.), a decision of considerable interest to the pay equity community. Further, in 2000, a Review Officer ordered Royal Crest Lifecare Group to apply the $1.50 Plan in respect of the non-union staff of its 11 nursing homes. The Order was upheld by the Tribunal in Royal Crest Lifecare Group, [2002] O.P.E.D. No. 27.

22On May 5, 2003, the SEIU was certified as the bargaining agent for approximately 90 per cent of the employees at Queensway. In 2008, Queensway and the SEIU negotiated what is referred to as “the 2008 Plan” for the Union employees. The 2008 Plan confirmed the Union’s agreement that the adjustment of $1.50 which had been paid in full to all employees by April 2005 fully achieved pay equity for the Union employees. The 2008 Plan was posted by Queensway on November 24, 2008. No objections of any kind have ever been made to the 2008 Plan. The Order in issue does not apply to the 2008 Plan and the Pay Equity Commission has never issued an Order finding the 2008 Plan to be invalid.

23The anonymous complaint that led to the Order at issue in this matter was filed by an employee or former employee of Queensway sometime in 2003: approximately eight years after the 1995 Plan was posted for employee review and comment. Queensway was not advised by Review Services that the complaint had been filed until in or around March 2004.

24Pursuant to a request from the Review Officer, Queensway provided her with a copy of the 1995 Plan on April 15, 2004. No further action was taken by the Review Officer until February 26, 2007 when she wrote to Queensway setting out her concerns that the 1995 Plan did not comply with the Act. Queensway provided the Review Officer with its submissions in correspondence dated October 31, 2007. On July 15, 2008, approximately five years after the anonymous complaint was made, the Review Officer made the Order in issue.

25As indicated above, the Order finds that that 1995 Plan is not a valid pay equity plan and directs Queensway to prepare a new pay equity plan. Queensway is required to collect information as to key female job classes that existed at Queensway in 1994 and collect information from a proxy employer concerning proxy female job classes and their duties and responsibilities as of 1994. Using this information a pay equity plan is to be created. Following the creation of the new pay equity plan, Queensway is to go back to 1994 and calculate the number of hours worked by any employee in a job class that is found to be entitled to a pay equity adjustment, calculate the amount owing from 1994 forward, add interest, and make payments to the individuals concerned. The Order provides that Queensway will receive credit for the $1.50 paid provided it submits data and information to demonstrate it distributed 1% of previous year’s payroll each year from 1994 to 2005. There is no means, however, for Queensway to recover pay equity adjustments paid to employees who, under the plan it has now been ordered to prepare, would not have been entitled to receive adjustments.

26Queensway conducted extensive and repeated searches of its documents, in both paper and electronic form, but was unable to reconstruct its payroll, personnel and other records as would be necessary in order to comply with the Order. Queensway also contacted the Corporation of the County of Huron, the employer for the nearest municipal home for the aged, in order to obtain information related to the job classes, rates of pay and other compensation at the proxy employer as at 1994 that would be necessary to prepare a new pay equity plan as directed by the Order. The County confirmed that it had a Health Care Aide position in 1994 but was not able to provide Queensway with a description of duties and responsibilities for that position as at 1994. As a result, Queensway is unable to evaluate the proxy female job class as required in order to comply with the Order.

27Since 1993, the scheme by which nursing homes are funded in Ontario has required them to spend all funds they receive for most of their operations in the year in which the funds are paid. Reserves are permitted, but only if the nursing home operator can demonstrate to the Ministry of Health and Long-Term Care that a claim against those funds has been made. Absent Queensway having any knowledge that there was an issue with the 1995 Plan until 2004, it was not in a position to obtain permission from the Ministry to create a reserve. Queensway has no financial reserves set aside for the potential financial implications of the Order.

28Between 1994 and 2005 when pay equity adjustments under the 1995 Plan were being made, employees of Queensway also received wage increases. By way of example, during the period 1996 to 2007, the top rate of pay for Health Care Aide classification increased by $1.82 in addition to the $1.50 pay equity adjustment required under the 1995 Plan. Had Queensway known that the 1995 Plan was subject to challenge it would have been possible for it to characterize a greater portion of the wage increase granted to its employees as pay equity adjustments thereby reducing any potential pay equity liability. This option has been lost. Once wage increases have been granted an employer cannot go back and re-characterize them as pay equity adjustments.

Law

29There are many decisions that consider whether delay leading up to a hearing will warrant a stay of proceedings. In the administrative law context it has been determined that delay, standing alone, will not warrant a stay of proceedings. It is only where the very fairness of a hearing has been compromised, or the delay amounts to an abuse of process, that a remedy, such as a stay of proceedings, is warranted. Whether a delay amounts to an abuse of process is not determined based on the length of the delay alone. Rather, it depends on contextual factors such as the nature of the case and its complexity, the facts and issues in dispute, the purpose and nature of the proceedings, whether the party seeking a remedy contributed to the delay and the nature of the various rights at stake in the proceedings.

30There are no cases that involve the very facts or interests at play in this matter. The cases discussed below, however, are within the administrative law context and consider, within facts that are somewhat similar to those at play herein, whether the delay is sufficient to warrant a stay of the proceedings.

31In the case of Ratzlaff v. British Columbia (Medical Services Commission), (1996), 1996 CanLII 616 (BC CA), 17 B.C.L.R. (3d) 336 (B.C.C.A.) the appellant, Dr. Ratzlaff, sought an order of prohibition to prevent the Audit Subcommittee of the Medical Services Commission (the “Commission”) from proceeding with a hearing into whether the Commission had paid Dr. Ratzlaff amounts were “an unjustified departure from the patterns of practice”. If the question were to be answered in the affirmative, the Audit Subcommittee could order Dr. Ratzlaff to repay the discrepancy. In support of his request for an order of prohibition, Dr. Ratzlaff raised the issues of limitation, estoppel and delay. Dr. Ratzlaff was granted an order of prohibition on the basis of delay.

32The facts as set out in the decision indicate that the Commission was aware of Dr. Ratzlaff’s billing practices commencing in 1977. Dr. Ratzlaff’s unusual billing profile had been subject to periodic scrutiny by the Commission as well as an advisory body called the Pattern of Practice Committee (“POPC”) from 1977 through to Dr. Ratzlaff’s retirement in 1990. From 1977 to 1990 the Commission never took any substantial steps to restrict Dr. Ratzlaff’s billing practices. No concrete steps were taken to recover monies which were said to be overpayments until March 1994 when the Audit Subcommittee gave Dr. Ratzlaff a notice of hearing.

33The chambers judge had found as a fact that the delay was not such that a fair hearing could not be conducted. This was so because the hearing would be conducted largely on the basis of statistics and documentary evidence. However, Dr. Ratzlaff argued that he was prejudiced by the delay because he had paid income tax on monies received that he would not be able to recoup as he had since wound up his practice and moved from the jurisdiction. Dr. Ratzlaff also argued that he would suffer financial losses from overhead he could not recover and because he is unable to be compensated for time he put into his practice that he would not otherwise have done had he known he would not be paid the fees that he had billed. Dr. Ratzlaff’s position, as stated at paragraph 19 of the decision “is that where the delay is so egregious that it amounts to an abuse of power or can be said to be oppressive, the fact that the hearing itself will be a fair one is of little or no consequence.”

34The British Columbia Court of Appeal stated at the end of paragraph 19 that it agreed with Dr. Ratzlaff’s position and determined that the order of prohibition should issue for the following reasons:

22 Agencies have an implied duty to perform their duties in a fair manner: H.T.V. Ltd. v. Price Commission, [1976] I.C.R. 170. Unless specifically permitted or required, unfair performance of agency duties is impermissible as being in effect outside of the jurisdiction deemed to have been conferred on agencies by their parent statutes. Judicial review is available to prevent such abuses of power: In re Preston, [1985] 1 A.C. 835 (H.L.) per Lord Templeman at 864-67 and Lord Scarman at 851-52; Laker Airways Ltd. v. Department of Trade, [1977] 1 Q.B. 643 (C.A.) per Lord Denning M.R. at 707. Lord Templeman is clear in Preston at 866-67 that the doctrine is not limited to acts giving rise to procedural unfairness. Abuse of power is a broader notion, akin to oppression. It encompasses procedural unfairness, conduct equivalent to breach of contract or of representation, and, in my view, unjust delay. I should add that not all lengthy delays are unjust; regard must be had to the causes of delay, and to resulting reasonable changes of position.

23 Where a party in the position of the appellant relies on delay as amounting to an abuse of power it is incumbent on that party to demonstrate a resulting change of position. In my opinion, the very fact that the appellant continued with his practice as he did and throughout the whole period of time in issue is sufficient to establish such a change of position. There can be no doubt that the appellant carried on his practice as he did and arranged as he must have his financial affairs thinking his billing problems were being handled in a manner satisfactory to him and, as time progressed, were behind him. I think the words of Abbott C.J. as far back as 1825 in the case of Skyring v. Greenwood, (1825) 4 B. & C. 282 at 288-290 (107 E.R. 1064) are apposite:

It is of great importance to any man, and certainly not less to military men than others, that they should not be led to suppose that their annual income is greater than it really is. Every prudent man accommodates his mode of living to what he supposes to be his income; it therefore works a great prejudice to any man, if after having had credit given him in account for certain sums, and having been allowed to draw on his agent on the faith that those sums belonged to him, he may be called upon to pay them back. Here the defendants have not merely made an error in account, but they have been guilty of a breach of duty, by not communicating to Mr. Skyring the instruction they received from the Board of Ordinance in 1816; and I think, therefore, that justice requires that they shall not be permitted either to recover back or retain by way of set-off the money which they had once allowed him in account.

24 This case has been cited with approval many times over the years.

25 In conclusion, I would allow the appeal and direct that an order of prohibition issue as sought by the appellant.

35In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] S.C.J. No. 43, the Supreme Court of Canada considered whether a 30 month delay by the British Columbia Human Rights Commission in processing sexual harassment complaints against Mr. Blencoe, a minister in the British Columbia government, amounted to an abuse of process warranting a stay of proceedings against him. The courts below had found as a fact that Mr. Blencoe’s ability to have a fair hearing had not been compromised. Mr. Blencoe argued, however, that notwithstanding that a fair hearing was possible, he had been severely prejudiced by the delay as the media attention was intense, he suffered severe depression, did not stand for re-election while the complaints were outstanding against him and considered himself unemployable due to the outstanding complaints.

36Commencing at paragraph 100 of the decision, Mr. Justice Bastarache writing for the majority considered whether delay could amount to a denial of natural justice even where the respondent’s ability to have a fair hearing had not been compromised. Following a summary of a number of decisions, including Ratzlaff v. British Columbia (Medical Services Commission), supra, in which other types of prejudice were asserted, Mr. Justice Bastarache concluded on this issue as follows:

115 I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an “unacceptable delay” that amounts to an abuse of process.

37Mr. Justice Bastarache commented as follows on what constitutes an “unacceptable” delay:

121 To constitute a breach of the duty of fairness, the delay must have been unreasonable or inordinate (Brown and Evans, supra, at p. 9-68). There is no abuse of process by delay per se. The respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings. While I am prepared to accept that the stress and stigma resulting from an inordinate delay may contribute to an abuse of process, I am not convinced that the delay in this case was “inordinate”.

122 The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay.

38In the end, after considering the nature of the case, the facts and issues, the purpose and nature of the proceedings and whether Mr. Blencoe contributed to the delay and other circumstances of the case including the interests of the women who had filed the complaints, the Supreme Court was not convinced that the delay was inordinate and directed the Human Rights Tribunal to proceed with the hearing of the complaints.

39In Warren v. Criminal Injuries Compensation Board, 2005 CanLII 44842 (ON S.C.D.C.) the applicant, Dr. Warren, asked the court to prohibit the Criminal Injuries Compensation Board (the “Board”) from proceeding with a complaint filed by an individual referred to by the initials L.G. on the basis that, as a result of delay, a fair hearing was no longer possible.

40Dr. Warren performed surgery on L.G. in March 1993. In September 1993 L.G. wrote to the College of Physicians and Surgeons (the “College”) and alleged that Dr. Warren had sexually assaulted her during the procedure. On November 15, 1994 L.G. reported Dr. Warren to the police. Dr. Warren was arrested and charged with assault. In March 1995 Dr. Warren was charged by the College with sexual impropriety and unprofessional misconduct. On September 18, 1995, L.G. made application to the Board alleging that Dr. Warren had assaulted her.

41By November 1996, the criminal charges were withdrawn by the Crown Attorney’s Office and the College withdrew all allegations against Dr. Warren.

42Dr. Warren was advised of L.G.’s application to the Criminal Injuries Compensation Board in December 1996. A one hour electronic hearing date was set for July 1997 but adjourned due to the unavailability of Dr. Warren’s witnesses. Dr. Warren’s lawyer made efforts to have the matter rescheduled and, when no response was received from the Board, counsel wrote to the Board in July 1998 pointing out the unfairness of the delay and offering to present evidence by way of affidavits in order to expedite matters. Shortly thereafter, counsel’s letter was returned to him bearing a handwritten notation that L.G. could not be located and the file had been closed. Fifty-one months later, on December 5, 2002, the Board wrote to Dr. Warren indicating that L.G. had requested that the file be re-opened.

43Dr. Warren filed an application asking the court to prohibit the Board from proceeding with L.G.’s claim. Dr. Warren argued that he was seriously prejudiced by the delay and that a fair hearing was no longer possible. L.G. intervened in the application arguing that granting the application would unfairly deprive her of any opportunity to present her case before the Board.

44After commenting that the delay involved was “extraordinary” and that the Board itself was responsible for a significant share of the delay, the Court went on to consider whether the delay was such that a remedy was warranted:

In the administrative law context, delay, standing alone, will not warrant a stay of proceedings,[2] however, delay will justify a remedy where it impairs the fairness of the hearing or results in an abuse of process.

In Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, (2002), 190 D.L.R. (4^th) 513 (S.C.C.), at paras. [101] and [102], the court said:

[101] … In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay.

[102] There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding. Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy … It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied. …

and further, at para. [105]:

[105] It is trite law that there is a general duty of fairness resting on all public decision-makers (Martineau v. Matsqui Institution Disciplinary Board, 1979 CanLII 184 (S.C.C.), [1980] 1 S.C.R. 602 at p. 628, 106 D.L.R. (3d) 385). The human rights processes at issue in this case must have been conducted in a manner that is entirely consistent with the principles of natural justice and procedural fairness. Perhaps the best illustration of the traditional meaning of this duty of fairness in administrative law can be discerned from the following words of Dickson J. in Martineau, at p. 631:

In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness.

and at para. [115]:

[115] I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an ‘unacceptable delay’ that mounts to an abuse of process.

and at para. [122]:

[122] The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community‘s sense of fairness would be offended by the delay.

It is important to remember that claims before the Criminal Injuries Compensation Board are intended to proceed in a summary fashion. There is no advance investigation or screening by the Board; there is a two-year limitation period (which can be extended). An initial one-hour electronic hearing was offered by the Board.

Here, 123 months have gone by since Ms. L.G. filed her complaint. This application for judicial review was launched nine-and-a-half years after the complaint. Two nurses and a nursing assistant have sworn affidavits to the effect that they no longer have an independent recollection of Dr. Warren’s treatment of Ms. L.G.. Their memories of what had happened was crucial evidence exonerating Dr. Warren of any criminal offence or professional misconduct. This loss of evidence because of the lapse of time means that Dr. Warren can no longer have a fair hearing.

In Stearns v. Alberta Insurance Council reflex, (2001), 2001 ABQB 752, 37 Admin. L.R. (3d) 114 (Alta. Q.B.), a seven-year delay in a disciplinary proceeding against an insurance agent resulted in a stay where diminished memories might affect the fairness of a hearing. In Blencoe there were “vague assertions that fall short of establishing an inability to prove facts necessary to respond to the complaints.” (para. [103]). Here there is credible evidence establishing the loss of important evidence.

In Hutchinson v. Newfoundland (Minister of Health & Community Services) reflex, (2001), 2001 CanLII 37644 (NL SC), 204 Nfld. & P.E.I.R. 254, at para. 29, proceedings were stayed after a 44-month delay where complete inactivity had led the doctor to believe that the claim had been abandoned. Similarly, in Ratzlaff v. British Columbia (Medical Services Commission) 1996 CanLII 616 (BC C.A.), (1996), 17 B.C.L.R. (3d) 336, a physician carried on his practice and then retired thinking the billing dispute was behind him after having written to the tribunal requesting action but getting no response. A hearing notice was not delivered for seven years. Hollinrake J.A., for the British Columbia Court of Appeal, agreed that, “where the delay is so egregious that it amounts to an abuse of power or can be said to be oppressive, the fact that the hearing itself will be a fair one is of little or no consequence.”

Here, Dr. Warren could reasonably believe the matter was at an end when the Criminal Injuries Compensation Board wrote to him to advise that it had closed its file.

Dr. Warren tried to expedite the hearing; he wrote four letters requesting hearing dates, to no avail. He provided the Board with notice of his evidence and witnesses, and offered to present some evidence by affidavit. The reopening of this file after so many years has caused Dr. Warren significant psychological harm which he described in his affidavit:

In this case, in addition to the unfairness of a trial after 123 months, I am satisfied that “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.” (See Blencoe, para. [120])

On the motion for intervenor status, Ms L.G. sought leave to file affidavit material; but as noted in the endorsement by Swinton J., “nowhere in the record does Ms. L.G. indicate the likely content.” I infer from this that Ms. L.G. has no explanation for the four-and-a-half-year period during which she did not pursue her claim.

The Criminal Injuries Compensation Board may award compensation although there has not been a criminal conviction. However, the community’s sense of fair play would be offended by resurrection of these proceedings after Dr. Warren had been exonerated twice after more than nine-and-a-half years of delay and after the closing of the file for four-and-a-half years.

In Blencoe, LeBel J. dealt with the tension between the interests of a complainant like Ms. L.G., and those of a respondent like Dr. Warren, at paras. [178]-[180]:

[178] In the end, the specific and unexplained delay entitles Blencoe to some kind of remedy. The choice of the appropriate redress requires, though, a careful analysis of the circumstances of the case, in order to identify the causes and nature of the delay and its impact on the process, because the courts always have some discretion on orders of remedies founded on the old prerogative writs. The selection of an appropriate remedy may also impose a delicate balancing exercise between competing interests. In proceedings like those that gave rise to this appeal, we must factor in the interest of the respondent, that of the complainants themselves and finally, the public interest of the community itself which wants basic rights enforced efficiently but fairly. As we have seen above, the courts must also consider the stage of the proceedings which has been affected by the delay. A distinction must be drawn between the process leading to the hearing and the hearing itself. A different balance between conflicting interests may have to be found at different stages of the administrative process.

[179] Several kinds of remedies are available either to prevent or remedy abusive delay within an administrative process. The main forms of redress that we need address here are a stay of proceedings, orders for an expedited hearing and costs.

[180] Whoever asks for a stay of proceedings carries a heavy burden. In a human rights proceeding, such an order not only stops the proceedings and negates the public interest in the enforcement of human rights legislation, but it also affects, in a radical way, the interest of the complainants who lose the opportunity to have their complaints heard and dealt with. The stay of proceedings should not generally appear as the sole or even the preferred form of redress: see R. v. O’Connor, 1995 CanLII 51 (S.C.C.), [1995] 4 S.C.R. 411, 130 D.L.R. (4^th) 235, at para. 68. A more prudent approach would limit it to those situations that compromise the very fairness of the hearing and to those cases where the delay in the conduct of the process leading to it would amount to a gross or shocking abuse of the process. In those two situations, the interest of the respondent and the protection of the integrity of the legal system become the paramount considerations. The interest of the complainants would undoubtedly be grievously affected by a stay, but the prime concern in such cases becomes the safeguarding of the basic rights of the respondent engaged in a human rights proceeding and the preservation of the essential fairness of the process itself: see Ratzlaff, supra, at para. 19. Whatever its consequences, a stay may thus become the sole appropriate remedy in those circumstances.

Here the delay compromises the fairness of the hearing and amounts to a gross abuse of the process. In my view, a stay is the sole appropriate remedy and an order will issue staying proceedings at the Criminal Injuries Compensation Board against Ralph Edward Warren upon the complaint of L.G.

Analysis

45Queensway seeks to have the Order set aside. Amongst the arguments it advances is that the delay that occurred leading up to the Order amounts to an abuse of process. Queensway further asserts that the delay has compromised its ability to adduce evidence establishing that it has made the required wage adjustments. Finally, although Queensway does not specifically state that such is a ground for revoking the Order, Queensway asserts that the records that would be necessary to comply with the Order have not been retained and accordingly compliance with the Order is impossible. I agree with Queensway on each of these points.

Impossibility of Compliance

46As indicated above, the Order requires Queensway to create a pay equity plan based on circumstances that existed in 1994. It is required to collect information from a proxy employer based on circumstances from 1994. This information no longer exists. It is impossible for Queensway to create a pay equity plan in the manner set out in the Order. Further, the Order requires Queensway to calculate wage adjustments owing to employees and former employees of Queensway back to 1994. Queensway does not have records of hours worked by employees dating back 14 years. As such, it is now impossible for it to make the calculations required by the Order. As stated in Greater Essex County District School Board, [2001] O.O.H.S.A.D. No. 107, an employer cannot be required to comply with an order with which it is impossible to comply. For that reason alone, the Order cannot stand.

The Delay has Compromised Queensway’s Right to a Fair Hearing

47Queensway is entitled by the provisions of the Pay Equity Act to apply to the Pay Equity Hearings Tribunal to have the Order varied or revoked. In the normal course, an employer who applies to the Tribunal to have an order revoked leads evidence to establish that the basis for the Order is incorrect. Queensway argues that its ability to lead evidence necessary to its case has been compromised by the delay leading up to the issuance of the Order.

48The delay that occurred in this case involves delay on the part of the anonymous individual who initially filed the complaint and delay on the part of the Pay Equity Commission. The anonymous individual did not file the complaint until eight years after Queensway posted the pay equity plan. Given that the individual did not file a response or attend at the pre-hearing conference we have no explanation for the delay. The Commission, notwithstanding its knowledge of the industry-wide adoption of the $1.50 Plan in 1995 at no time notified Queensway or the nursing home industry that it did not consider the $1.50 Plan to be a valid pay equity plan. Rather, the Commission, in 2000 ordered a nursing home industry employer to comply with the $1.50 Plan in respect of its non-union employees. When the Commission received the anonymous complaint against Queensway in 2003 it did not notify Queensway of the complaint for a year; did not advise Queensway that it considered there to be a problem with the 1995 Plan for a further three years; and didn’t issue an Order until five years after the complaint was filed. There has been considerable delay in this matter.

49Further, the delay leading up to the Order is the direct cause of Queensway’s inability to have a fair hearing. Although Queensway argues that the 1995 Plan is a valid pay equity plan there is really no doubt that the 1995 Plan does not meet the technical requirements of the Act. As explained above, that is because of the industry-wide negotiations that took place and the development and adoption of the $1.50 Plan by virtually all unionized and non-union employers in the nursing home industry. However, it is also Queensway’s position that had the steps set out in the Act for developing a pay equity plan been strictly followed, the resulting pay equity adjustments that any employee of Queensway would have been entitled to receive would likely not have exceeded what they were in fact paid. The difficulty for Queensway is, given the passage of time, the records necessary to create a pay equity plan in the manner dictated by the Act and calculate any adjustments that were required as a result, no longer exist. In the absence of being able to calculate the adjustments Queensway would have been required to pay had a plan been created in strict compliance with the Act, it is unable to prove that the amounts it has paid were sufficient to meet its pay equity obligation.

50Thus, I am satisfied that the delay leading up to the issuance of the Order has compromised Queensway’s ability to have a fair hearing. The prejudice that has been caused to Queensway’s ability to have a fair hearing cannot be cured and accordingly the only appropriate remedy is for the Order to be revoked.

Delay Amounting to an Abuse of Process

51As set out above, delay can also amount to an abuse of process justifying the granting of remedial relief in circumstances where there has been no compromise to the ability to conduct a fair hearing. Whether the delay amounts to an abuse of process depends on the contextual factors such as the nature of the case and its complexity, the facts and issues in dispute, the purpose and nature of the proceedings, whether the party seeking a remedy contributed to the delay and the nature of the various rights at stake in the proceedings.

52This matter further involves rights under the Pay Equity Act, legislation that is intended to redress pay inequalities flowing from systemic discrimination against women. The enforcement of these important rights ought not to be lightly interfered with. The interests at stake in this matter are not limited to those of Queensway. They include those of the anonymous complainant as well as the societal interest in eliminating pay inequality based on sex.

53The issue in this case is really not complex. As indicated above, there is really no doubt that Queensway did not prepare a pay equity plan according to the strict technical requirements of the Act. That was obvious on the face of the 1995 Plan and would have been immediately apparent to the Review Officer. There was no need for the Review Officer to conduct a lengthy investigation (which she did not) and no reason for there to be any delay in her disposition of the complaint.

54While this matter involves the interests of the anonymous complainant the individual did not respond to the application (s/he could have done so through a representative and remained anonymous) nor did s/he attend at the pre-hearing conference. We have no explanation as to why the individual did not file a complaint until 2003 (eight years after the 1995 Plan was posted) or participate in this matter. In the circumstances, while the complainant’s interests are important ones and ought not to be lightly set aside, they are not as compelling as they would have been had the complainant been a responding party in this matter.

55The prejudice to Queensway as a result of the delay is not limited to its inability to have a fair hearing. The prejudice to Queensway includes the fact that, as a result of the delay, it was denied the ability to mitigate its financial damages by characterizing wage increases given during the period of 1995 – 2005 as pay equity adjustments or setting aside reserves in anticipation of a finding of potential liability. If the Order were to stand, Queensway would face the prospect of paying further pay equity adjustments that it could have avoided or planned for without having the funds required to do so.

56The delays on the Commission’s part in advising Queensway that it did not consider the 1995 Plan to be a valid pay equity plan are not only considerable, but in the circumstances, unfair. As indicated above, the adoption of the $1.50 Plan by the nursing home industry was open and notorious and well known to the Commission. The Commission possesses the power to audit employers and issue orders in the absence of a complaint but, to the Tribunal’s knowledge, it never took issue with the validity of the $1.50 Plan. Rather, the Commission issued at least one order requiring an employer in the nursing home industry to comply with the $1.50 Plan. Based on the Commission’s conduct there was every reason to believe that the Commission did not intend to challenge the $1.50 Plan and in fact considered it a valid pay equity plan. With this backdrop, Queensway adopted the $1.50 Plan by posting the 1995 Plan and made wage adjustments required by that plan effective January 1, 1994 through to April 2005. All required payments were made. All payments were made before the Review Officer advised Queensway in 2007 that she believed there to be a problem with the 1995 Plan.

57Having considered all of the contextual factors in this case, it is my determination that the delay that occurred in this case was unreasonable given its length, cause and effect and is thus abusive and contrary to the conduct of a fair and efficient legal system. As such, the delay amounts to an abuse of process and warrants remedial relief. As indicated by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission, supra, the remedy for delay that amounts to an abuse of process is not necessarily that the proceedings are stayed. However, given my determination that the delay in this case also compromised Queensway’s ability to have a fair hearing for which the remedy is a stay of the proceedings, I need not consider the issue of the appropriate remedy further.

Disposition

58For these reasons, the Order is hereby revoked.