PAY EQUITY HEARINGS TRIBUNAL

2783-09-PE Maitland Manor Health Care Centre, Applicant v. Rick Mattuci, Lori Stephens, Denise Lockie, Natalie Miltenburg, Amanda Beddow, Becky Jarvis, Angela Leggatt, Beth Sorensen, Crystal Agombar, Karen Eckenswiller, Respondents v. Pay Equity Office, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair.

DECISION OF THE TRIBUNAL: November 5, 2010

1. This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) for review of an Order dated, November 12, 2009 issued by Review Officer Tiziana Isgro (“the Officer”).

2. A hearing in this matter took place on September 9, 2010. On the consent of the parties obtained prior to the hearing, I heard the matter sitting alone.

3. The Tribunal is in receipt of a request from counsel for the Pay Equity Office (“the PEO”) to participate as an intervenor in respect of this matter. The request is prompted by the recent issue of the Tribunal’s decision in Queensway Nursing Home (File No. 0439-09-PE, unreported, October 1, 2010). In that matter, the conduct of the Review Officer and the processes of Review Services were significant factors in the Tribunal’s decision to revoke the Review Officer’s order. The PEO was provided an opportunity by the Tribunal to review and respond to the employer applicant’s written submissions, but declined to do so. It is has filed a request for reconsideration of the Tribunal’s decision in that matter.

4. The PEO has learned that similar issues arise in this matter. It wishes to intervene in order to address those issues. Counsel for the applicant strenuously objects. The applicant argues that the PEO received a copy of the applicant’s application as far back as December 16, 2009, for the purpose of serving the application on the confidential employee responding party. The applicant submits that the application clearly set out the issues of undue delay and abuse of process, and that the PEO took no steps to respond to those issues or otherwise intervene. Moreover, counsel for the applicant submits that she informed counsel for the PEO on September 7, 2010 of the hearing in this matter scheduled for September 9, 2010. Furthermore, at the hearing on September 9, 2010 the applicant tendered evidence from two witnesses. The Tribunal reserved its decision, which remains pending. The applicant says it is too late too for the PEO to intervene.

5. Having considered the submissions of the applicant and the PEO it seems to me that the PEO’s request should be granted for the following reasons. Clearly, the applicant’s position in this matter involves an attack on the PEO’s processes. In fact, one of the remedies sought by the applicant is a permanent stay of the application brought by the confidential employee for Review Services provided by the PEO. The PEO has an interest in these issues.

6. Secondly, the fact that the applicant provided a copy of its application to the PEO for purposes of distribution to the confidential employee is not, in my view, notice to the PEO of this proceeding. It was not named as an interested or affected party. Further, the PEO did not have notice of the hearing from the Tribunal, and to the extent counsel for the applicant can be said to have provided notice of the hearing to the PEO on September 7, 2010, two days’ notice is not adequate. Accordingly, the PEO has not had an opportunity to participate in a proceeding in which its processes are being challenged.

7. Thirdly, while the applicant is correct that a hearing has been held and evidence heard, the testimony of the two witnesses spanned no more than approximately two hours. The hearing did not last an entire day. There is no doubt that the applicant will suffer some prejudice in terms cost and time to relitigate the matter. On the other hand, the PEO may suffer substantial prejudice if it is precluded from any ability to participate in this matter. Furthermore, it seems to me that the determination of the issues raised by the applicant might benefit from the participation of the PEO.

8. For these reasons, the PEO’s request for intervenor status is hereby granted.

9. The Registrar is directed to schedule a fresh hearing in consultation with the applicant and the PEO.

Dated at Toronto this 5th day of November, 2010.

“Patrick Kelly”___

Patrick Kelly, Vice-Chair