Queensway Nursing Home v. Group of Confidential Employees, 2010 CanLII 74633

PAY EQUITY HEARINGS TRIBUNAL

0439-09-PE 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: December 16, 2010

1By way of decision dated October 1, 2010 (the "Decision"), the Pay Equity Hearings Tribunal (the “Tribunal”) set aside a July 15, 2008 Review Officer Order (the "Order") finding Queensway Nursing Home (“Queensway”) not to have a valid pay equity plan and directing 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. The Tribunal determined that the Order ought to be set aside for two reasons. First, it was impossible for Queensway to comply with the terms of the Order. Second, the delay leading up to the issuance of the Order both compromised the ability to hold a fair hearing and amounted to an abuse of process.

2As is set out at paragraphs 2 and 3 of the Decision, notwithstanding that notice of the application was duly provided to them, neither the anonymous employee who filed the complaint leading to the Pay Equity Office’s involvement nor any other existing or former employee of Queensway, sought to participate in this matter. The Service Employees International Union, Local 1 Canada (the "SEIU"), who was certified in 2003 and now represents individuals who would be affected by the Order and is party to a pay equity plan with Queensway that is identical to that in respect of which the Order was made, advised the Tribunal that it did not intend to participate in these proceedings. Further, the Pay Equity Office (the "Office") was provided with a copy of the application and the written submissions filed by Queensway and invited by the Tribunal to file submissions in response. The Office declined to do so.

3The Office has filed a request for reconsideration pursuant to subsection 30(2) of the Pay Equity Act, R.S.O. 1990, Chapter P.7 (the “Act”) in respect of the Tribunal's Decision. Queensway filed submissions in response to the request for reconsideration and the Office filed submissions in reply. The request for reconsideration raises two issues: (1) should the Office be given standing to bring the request for reconsideration; and (2) should the request for reconsideration be granted.

The Decision

4Before I turn to consider the issues herein, it is useful to provide a very brief overview of issues dealt with in the Decision.

5The application and submissions filed with the Tribunal and forwarded to the Office (and in respect of which it was invited to file submissions) clearly and unequivocally asserted the following:

1. It was impossible for Queensway to comply with the Order because: (1) Queensway itself did not have the records necessary to comply with the Order; and (2) the proxy employer, the Corporation of the County of Huron, did not have the records necessary to enable Queensway to comply with the Order.

2. The 1995 Plan complies with the Act or should be found to comply with the Act because it meets the objectives of the Act.

3. Given that the 1995 Plan is a deemed approved plan, the Review Officer was without jurisdiction to issue the Order in the absence of having found a violation of Part I of the Act.

4. The delay by the anonymous employee in filing the complaint and/or the delay on the part of the Office in issuing the Order resulted in prejudice to Queensway such that the Order amounts to an abuse of process and breach of natural justice.

6Each and every one of the issues raised by Queensway was an issue in respect of which there is no established Tribunal jurisprudence directly on this point. The first issue raises the issue of whether an employer can be ordered to carry out the statutorily prescribed approach to establishing a pay equity plan in circumstances where it is impossible for the employer to do so. Prior to the Decision there was no Tribunal jurisprudence on this point. The second issue raised is whether the 1995 Plan complies with the Act and, if not, whether it complies with the objectives of the Act and on that basis can be found to be a valid pay equity plan. I am unaware of any Tribunal jurisprudence that considers whether a plan that is not strictly compliant but meets the objectives of the Act can constitute a valid pay equity plan. The third issue challenges the jurisdiction of the Office to issue an Order in the absence of having found a violation of Part I of the Act. While there is a line of jurisprudence that establishes an individual cannot challenge a deemed approved pay equity plan without establishing a violation of Part I, to date there appears to have been only one Tribunal decision in which it was stated that, in order to issue an Order, Review Officers must show the compensation practices established by a deemed approved plan failed to provide for pay equity (see: Humber CAAT (No. 4) (June 20, 2000) 0666-98 (P.E.H.T)). Finally, the fourth issue raised the question of whether an abuse of process at the Office level that could not be cured by the Tribunal’s processes warranted setting the Order aside. This too is an issue in respect of which there is no Tribunal jurisprudence.

7The undisputed facts concerning whether or not Queensway was able to comply with the Order are set out at paragraph 26 of the Decision as follows:

26. Queensway 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.

8Having regard to these facts, the Tribunal determined that it was impossible for Queensway to comply with the terms of the Order and, on that basis, set the Order aside.

9The facts as found by the Tribunal further established that the Office was fully aware that the nursing home industry in Ontario had developed the $1.50 Plan (the 1995 Plan is identical to the $1.50 Plan and modeled after it) and yet, notwithstanding that one of its powers is to monitor pay equity compliance in the Province, took no steps to let the industry know that it did not consider the $1.50 Plan to be a valid pay equity plan.

10As a result of the open and notorious nature of the $1.50 Plan and the fact that the Office took no action in response, Queensway made pay equity adjustments as required under the 1995 Plan that they cannot now recover. Further, Queensway gave pay increases that it did not characterize as pay equity adjustments when it otherwise may not have and did not create a reserve to deal with a potential pay equity liability. Finally, as noted above, Queensway did not maintain the records that it would require in order to establish that the pay equity adjustments paid out commencing in 1994 were at least equal to what individuals would have been entitled to under the plan the Office has directed Queensway to prepare. As such, while the 1995 Plan may have achieved pay equity, Queensway is without the means to prove it.

11Given that the Office’s delay in issuing the Order resulted in the inability of Queensway to have a fair hearing, the Tribunal determined that the Order ought to be set aside. Further, given the prejudice caused to Queensway, the Tribunal found that the delay leading up to the issuance of the Order amounted to an abuse of process. While the remedy for a finding of an abuse of process is not necessarily that the proceedings be set aside, given the Tribunal’s determination that the delay also compromised Queensway’s ability to have a fair hearing for which the remedy is a stay of proceedings, the Tribunal did not go on to consider the appropriate remedy for the abuse of process.

The Relevant Provisions of the Act, Rules and Information Bulletins

12Subsection 30(2) of the Act provides that the Tribunal may “at any time, if it considers it advisable to do so, reconsider a decision or order made by it and vary or revoke the decision or order.”

13The Tribunal’s Rules of Practice in respect of requests for reconsideration provide as follows:

Reconsideration

79. The Tribunal may, at any time if it considers it advisable to do so, reconsider any decision or order made by it and vary or revoke the decision or order.

80. A party seeking reconsideration shall complete a Request for Reconsideration (Form 12) setting out the reasons for the Request, and serve it, together with a copy of Information Bulletin #7 “Requests for Reconsideration”, on all other parties. Four (4) copies of the Request and Statements of Service (Form 3) must be filed with the Tribunal. Where the Request is filed by facsimile transmission no additional copies need to be filed.

81. Except with the permission of the Tribunal, a Request for Reconsideration must be filed no later than twenty (20) days after the decision or order which is the subject of the request was issued by the Tribunal.

82. Any party may respond to the request for reconsideration by serving its written submissions on all parties. Four (4) copies of the submissions, together with Statements of Service (Form 3), must be filed with the Tribunal no later than five (5) days after the date of effective service of the Request. Where the submissions are filed by facsimile transmission no additional copies need to be filed.

83. Ordinarily, the Tribunal will decide the Request for Reconsideration on the basis of written submissions. Where the Tribunal decides to hear the Request in person or by telephone conference call, the Registrar will set the date for hearing.

14The Tribunal’s Information Bulletin on the manner in which a Request for Reconsideration is to be filed provides as follows:

MAKING A REQUEST FOR RECONSIDERATION

What Goes in the Request?

Complete a "Request for Reconsideration" (Form 12). Your request must name all parties to the decision you wish reconsidered and include the Tribunal File Number. If your address, telephone number, contact person or representative has changed since the Tribunal issued the decision, provide that new information. If this information has changed for the responding party(ies) provide it also.

Part D of the Request is where you set out the facts and reasons which you say require the Tribunal to reconsider its decision. This should be done in consecutively numbered paragraphs. You can write on the form or attach additional pages to the Request. Be sure you explain how your Request meets the tests for granting reconsideration expressed in the Tribunal decisions identified above. The Tribunal usually decides Requests for reconsideration without an oral hearing so what you say in the written Request is critical.

Part E of the Request is where you tell the Tribunal what you want it to do: set aside its decision; hold a new hearing; consider missing evidence etc. You can write on the form or attach additional pages to your Request.

Should the Office be given standing to seek reconsideration?

15Queensway submits that the Office should not be given standing to seek reconsideration. Queensway points out that the Office was aware of the proceeding from the start and elected not to participate. Queensway asserts that a copy of the application was provided directly to the Review Officer on or about May 19, 2009 and a copy of the application was delivered to the Office at or about the time that it was filed with the Tribunal. The Tribunal provided the Office with a copy of the application at the outset of the proceedings as the Tribunal required the Office to serve the application on the anonymous employee who had filed the complaint leading to the Office’s involvement. Further, the Office was provided with a copy of the application as well as Queensway's submissions to the Tribunal and specifically invited by the Tribunal to make submissions on any issue in the proceeding before the Decision was released. The Office declined the opportunity to do so. Queensway argues that, having elected not to participate in the proceedings even when invited to do so by the Tribunal, the Office cannot now obtain standing for the sole purpose of seeking reconsideration.

16The Office asserts that there was a lack of notice given to it by the Tribunal. According to the Office, it was not sufficient for the Tribunal to forward the application and submissions that had been made by Queensway to the Office and provide it with an opportunity to make submissions; the Office argues that the Tribunal was required to specify the areas where the Tribunal sought information or submissions from the Office. The Office further argues that the Tribunal did not adequately inform the Office that “the Tribunal was markedly deviating from its long-standing jurisprudence and that the Tribunal was considering the Office’s authority, discretion and practices” or that “it would also consider the Office’s conduct in respect of other orders and knowledge of existence of the $1.50 plan as relevant factors and which were not alleged in the Employer’s Application or submissions.”

17The Office correctly asserts that the Tribunal has a well-established line of jurisprudence to the effect that it will not enquire into allegations concerning the manner in which a Review Officer conducted an investigation. Each of the cases concerns circumstances where the alleged defects at the Review Officer stage are cured by the Tribunal’s own processes thereby rendering the issue moot. For example, where a party seeks to complain that it was not given a full opportunity to make submissions to the Review Officer in advance of the issuance of the Order, the Tribunal will not enquire into the complaint regarding the review process because the party is given full opportunity to call evidence and make submissions on the merits of the matter in a hearing de novo conducted by the Tribunal.

18The Office further correctly points out that the Office is not a party to all Tribunal proceedings. The Tribunal has ruled that the Office is not a “party to the proceeding” as defined in subsection 32(1) of the Act. The Office is only a party to an application filed under section 24(6) of the Act where it specifically seeks to intervene and is granted intervenor status or is invited to participate by the Tribunal. As pointed out by the Office, the Tribunal grants standing to the Office to intervene where the Office has a substantial and direct interest in disputes such as where the outcome and impact of the Tribunal’s interpretation of the Act affects the jurisdiction, authority and practices of the Office. The Tribunal has stated that the Office ought to have an opportunity to participate fully when jurisprudence is being developed by the Tribunal regardless of whether the decision will impact on the jurisdiction, authority and practices of the Office. In the absence of an issue that affects the jurisdiction, authority and practices of the Office or may result in the development of Tribunal jurisprudence, the Office is not recognized by the Tribunal as a party that is entitled to participate in the proceedings.

19Thus, at the time that the Office was invited by the Tribunal to file submissions in response to the submissions of Queensway, the Office knew that the Tribunal was not in the practice of enquiring into issues involving the conduct of the Office that its own processes would effectively cure. The Office further knew that the Tribunal would only invite the Office’s participation if the Tribunal’s Decision could affect the jurisdiction, authority and practices of the Office or may constitute the development of new jurisprudence.

20The Office submits that, without having its attention directed to a specific issue raised by Queensway, it assumed that the Tribunal would not issue a decision that considered the Office’s jurisdiction, authority or practices and thus made no submissions. The Office argues that the Decision deviates from this jurisprudence and was in and of itself a denial of natural justice and amounted to an error of law.

21I will deal with the last point first. As discussed above, the Decision reaches two conclusions. First, the Decision finds that it is impossible for Queensway to comply with the Order and thus the Order cannot stand. There are no previous Tribunal decisions on this point and hence there is no deviation from prior jurisprudence. Second, the Decision holds that, due to the delay that took place from the adoption of the 1995 Plan to the issuance of the Order, it is now impossible for Queensway to have a fair hearing of its application to have the Order revoked. The Office asserts that this second conclusion deviates from prior Tribunal jurisprudence wherein it was held that the Tribunal would not consider allegations by an applicant that they had been denied natural justice at the Review Officer stage because any such allegations are cured by the Tribunal’s hearing de novo. There is, however, a fundamental difference between this case and the line of jurisprudence that the Office relies upon. In this case, not only can the denial of natural justice that occurred at the Office stage not be cured by the Tribunal’s proceedings, it actually operates to prevent Queensway from having a fair hearing before the Tribunal.

22I turn then to the Office’s submission that it was not given proper notice of the issues addressed in the Decision because, in the absence of the Tribunal directing its attention to a specific issue raised in the application or submissions, it assumed that the Tribunal would not issue a decision that considered the Office’s jurisdiction, authority or practices or create new law. I do not accept that the Office’s assumption in this regard was reasonable.

23The Tribunal rarely invites the Office’s participation in a section 24(6) application. An invitation from the Tribunal to the Office to file submissions in respect of an application in which there are clearly identified issues is a fairly strong signal that the Tribunal is struggling with an issue of significance. As the Office itself accepts, it is only where the Tribunal’s decision may impact on the Office’s jurisdiction, authority or practices or create new law that the Office is typically given standing in a Tribunal proceeding. It stands to reason that, if the Tribunal was inviting the Office’s participation, it was doing so because it was contemplating a decision that may impact on the Office’s jurisdiction, authority or practices or create new law.

24While I fail to see how the fact that the Tribunal did not direct the Office’s attention to a specific issue raised in the application led to the Office not having notice, the fact is that the Tribunal was interested in the Office’s submissions in respect of all four issues raised.

25The Office was given notice of the application and the issues raised therein. It was extended the opportunity to participate in this matter. It declined to do so. Having declined to participate prior to the issuance of the Decision, it is not appropriate for it to be granted standing to request reconsideration thereof. I would deny the Office standing to file the request for reconsideration.

Merits of the Reconsideration Request

26If I am incorrect and the Office ought to be granted standing to bring this reconsideration request, it is my determination that the request ought to be denied.

27As indicated above, a request for reconsideration is to contain all of the facts and submissions that a party relies upon in support of their request. This is because the Tribunal quite often deals with reconsideration requests based on the written submissions. It is for this reason the Information Bulletin states: “The Tribunal usually decides Requests for reconsideration without an oral hearing so what you say in the written Request is critical.”

28The Office argues that the Decision is wrong in law for a number of reasons. It gives nine reasons in its request for reconsideration. It added three more in its reply. Below, I deal with the reasons put forward by the Office.

1. The Tribunal erred in law by taking into account irrelevant and unproven facts about the various processes of the Office and of the state of knowledge that the Office may or may not possess about the implementation of pay equity in the nursing home sector, which facts were not raised nor relied upon in the submissions of the employer.

29The Office does not specify what “irrelevant and unproven facts” the Tribunal took into account that amounted to an error of law. I presume the Office is referring to the Tribunal’s findings that the Office was aware of the industry-wide adoption of the $1.50 Plan and, notwithstanding its mandate to investigate and monitor pay equity, did not voice any concerns about the $1.50 Plan but rather participated in proceedings before the Tribunal where it sought enforcement of the $1.50 Plan. On this point, I note that the Office has highlighted an additional proceeding before the Tribunal in which it, by an Order dated April 1999, required Kensington Village to comply with the terms of the $1.50 Plan (see: Kensington Village v. Service Employees International Union, Local 220, 2000 CanLII 22420 (ON P.E.H.T.).

30First, notwithstanding the requirement that the Office set out in full the facts it relies upon in support of its request for reconsideration, it is notable that the Office does not deny the facts that I am presuming it asserts are irrelevant and unproven. Thus, it must be assumed that the Office accepts the validity of such facts.

31Second, a decision maker is entitled to take judicial notice of generally known facts whose accuracy cannot be reasonably questioned (see: Ringrose v. College of Physicians and Surgeons of the Province of Ontario, 1978 ALTASCAD 41, [1978] A.J. No. 961 (Alberta Supreme Court)). As indicated above, the Office does question the accuracy of the facts.

32In the case of an expert administrative tribunal such as the Tribunal, the members of the tribunal are expected to be knowledgeable about events and developments within the Tribunal’s area of expertise. Adjudicators at administrative tribunals are expected to bring that expertise to the matters in respect of which they adjudicate (see: Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans), 2000 CanLII 16718 (F.C.)). The facts that the Tribunal took notice of in the Decision are all facts within the Tribunal’s area of expertise.

33The Office asserts that the fact that the Office was aware of the $1.50 plan as of its adoption by the industry and took no steps to put the industry on notice that it did not consider the $1.50 Plan to be a valid pay equity plan was not a fact relied upon by the applicant. Although the Office did not say why that would be a problem given that it does not deny the fact, I assume that the Office believes that it was denied an opportunity to respond to the application with knowledge that this fact would play a part in the Tribunal’s decision. However, by way of the request for reconsideration, the Office has now had an opportunity to provide the Tribunal with its submissions with full knowledge that the facts in issue played a part in the Tribunal’s decision and has not filed any submissions as to why these facts are not relevant or ought not to lead to the determination reached by the Tribunal.

2. The Tribunal erred in the law by applying irrelevant and unproven facts to support its conclusion that the Office's apparent knowledge of sectoral arrangement known as "the $1.50" plan that was implemented by many employers in this sector indicated endorsement of the "plan" and would preclude the Office from investigating individual complaints about the legitimacy of an individual employer's pay equity plan as required to do by legislation.

34As indicated above, the Office does not dispute that it had knowledge of the $1.50 Plan. The Office does not dispute that it did not, at the time the $1.50 Plan was adopted, conduct an investigation or audit in respect of any employer that adopted the Plan (as it is entitled to do in the absence of any individual complaint). The Office does not dispute that it issued Orders requiring employers to apply the $1.50 Plan and that payments have been made by employers since 1994 when the $1.50 Plan was widely adopted in the industry that cannot now be reclaimed.

35I do not accept that, in light of those undisputed facts, it is an error of law to find that it would be an abuse of process to permit the Office to Order Queensway to create and implement a new pay equity plan back to 1994.

3. The Tribunal erred in the law in revoking the Order and absolving the Employer from its obligations under the Act, in light of the fact that there is no limitation period for the making of a complaint under the Act, and the Tribunal's own determination that the Employer's pay equity plan did not comply with the requirements of the Act.

36Assuming the 1995 Plan did not comply with the requirements of the Act, this fact was known to the Office immediately upon adoption of the Plan. I do not accept that the fact that the Act does not contain a limitation period means that the Office can, with full knowledge of a state of affairs that it considers to amount to a contravention of the Act, take no action while the employer acts to its prejudice and then years later challenge the plan. Further, the Decision finds that it is impossible for Queensway to comply with the Act and that Queensway cannot be ordered to do something that is impossible. I do not see how the absence of a limitation period addresses this problem.

37In addition, I am not persuaded that Queensway has been absolved of its responsibilities under the Act. As stated in the Decision, while it is apparent that the 1995 Plan does not comply with the technical requirements of the Act, that is not the same as saying that the pay equity adjustments paid out by Queensway under the 1995 Plan were not at least equal to what employees would have received had a technically compliant plan been applied. The Office has not stated as a fact that there is a single person who would have received more in the way of pay equity adjustments had Queensway adopted a technically compliant plan. One of the arguments advanced by Queensway that the Tribunal did not rule on, but commented likely had considerable merit, was that the Office was without jurisdiction to issue the Order in the absence of a finding that there had been a violation of Part I of the Act. In order to find a violation of Part I of the Act, the Office would have to find that the compensation practices established by the deemed approved pay equity plan failed to provide for pay equity and would have to do so by a reference to specific provisions of Part I of the Act.

38Finally, the Office has an ongoing authority to monitor employers for pay equity compliance including the obligation that they maintain pay equity. The Office has numerous extensive powers available to it (see: section 34 of the Act) that are not available to the Tribunal. The fact that the Order has been set aside does not mean that the Office cannot use its powers to devise and issue an Order that is within its jurisdiction, does not amount to an abuse of process and in respect of which Queensway is able to comply.

4. The Tribunal erred in law in concluding that there is no obligation on the employer to keep records under the Act and that a lack of records is a defense to the failure to comply with the Act, given the legislative requirement to maintain pay equity the onus is on the Employer to demonstrate compliance even in the absence of a complaint.

39The Tribunal noted that, in contrast to other statutes such as the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “ESA”), the Pay Equity Act does not contain a statutory requirement that employers maintain pay equity records. The Office does not point to any provision of the Act that requires them to do so. I do not mean by this statement to undermine the importance of an employer maintaining such records. Any prudent employer who was making statutorily mandated payments to its employees that were subject to challenge for an unlimited period of time would retain such records.

40Where an employer files an application under section 24(6) of the Act and challenges a finding of a Review Officer that the employer has not achieved pay equity, the employer bears the onus of convincing the Tribunal that the Order should be set aside or varied. If the employer’s position is that the Order should be set aside because the employer was in fact pay equity compliant the best evidence would be documentary evidence establishing that fact.

41In the present case, one of Queensway’s arguments was that it had achieved pay equity, however, it had a number of other grounds on which it sought to have the Order set aside. One ground was that it was impossible for it to comply with the Order. It was in the context of this argument, and not an argument that Queensway was pay equity complaint, that the Tribunal made its comments concerning the need to maintain records.

42Further, even if employers are required to maintain pay equity records, in this case, the records are, in part, records of another employer – not Queensway. The fact that the records of another employer do not exist is through no fault of Queensway.

5. The Tribunal erred in the law in failing to consider whether the Employer's Application made out a prima facie case.

43The Tribunal does not understand this reason for seeking review. The application made out a prima facie case.

6. The Tribunal erred in the law in failing to consider other appropriate remedies that could have been made available to the Employer had it wished to provide remedial relief to the Employer under the circumstances of this case.

44This ground for review raises the distinction between the powers and responsibilities of the Office and those of the Tribunal.

45When the Office approaches an employer to do an audit or investigation it has very wide powers available to it under section 34 of the Act. A Review Officer can enter any place at a reasonable time and request the production of documents or things. A Review Officer can question persons on matters relevant to the carrying out of the Officer’s duties. A Review Officer can obtain a warrant for entry into buildings and the search thereof for documents that will afford evidence relevant to the carrying out of a Review Officer’s duties. It is an offence under the Act to hinder, obstruct or interfere with a Review Officer.

46In contrast, the Tribunal is quasi-judicial adjudicative agency. The Tribunal does not have powers similar to Review Officers. The Tribunal conducts hearings and makes decisions based on the evidence and submissions received. For example, in the present case, the Tribunal received the application and submissions of Queensway. Those submissions set out the reasons why Queensway sought an Order from the Tribunal finding the 1995 Plan to be a valid pay equity plan and setting aside the Order. Due to the fact that Queensway was the only party to the application, the facts asserted by Queensway were not disputed. The Tribunal considered the submissions filed and granted part of the relief requested.

47Given that the Tribunal does not have the powers of a Review Officer and is an adjudicative agency that is not of an inquisitorial nature, there is no means for the Tribunal to get at the information that it would have needed to vary the Order in issue in this case.

48As stated above, the Office can, through its investigative and order making powers, issue a new Order that is within the Office’s jurisdiction and capable of compliance on Queensway’s behalf and does not amount to an abuse of process.

7. The Tribunal erred in law in concluding that the delay at the Review Services stage made it impossible for the Employer to comply with the Order or that it comprised the Employer's right to a fair hearing in the absence of any proof before it that the employer's situation was compromised between the filing of the complaint at Review Services and the rendering of the Review Officer's Order.

49The Decision did not conclude that it was the Office’s delay that made it impossible for Queensway to comply with the Order. The Decision found that Queensway could not comply with the Order and that as a result the Order cannot stand. The Tribunal cannot issue an order requiring someone to do an impossible act regardless of how that impossibility came about.

8. The Tribunal erred in law in considering what it referred to as the "conduct of the Commission" when the Tribunal did not adequately notify the Office that its conduct and processes would specifically be taken into account contrary to the Tribunal's own jurisprudence

50As discussed above under the heading “Should the Office be given standing to seek reconsideration?” it is the Tribunal’s view that the Office was given adequate notice of all issues raised. Further, the Office was given an opportunity to set out in its request for reconsideration its submissions as to why the Tribunal’s account of the Office’s conduct and processes was wrong. No such submissions were made.

9. The Tribunal erred in the law concluding, on its own, that the Pay Equity Office considered the "$1.50" plan to be a valid pay equity plan by virtue of proceedings in other cases where the $1.50 plan was applied for where the legitimacy of the "$1.50" plan was not in dispute as is the situation in this decision.

51For the reasons set out above in response to grounds 1 and 2, the Tribunal does not accept that it is an error of law for an expert tribunal to take judicial notice of events within its area of expertise. The Office knew of the $1.50 Plan for years and notwithstanding its investigative and monitoring powers took no action. It is a fair inference from that fact that the Office accepted the legitimacy of the $1.50 Plan. The Office took steps to enforce the terms of the $1.50 Plan and I do not see how the fact that those cases did not involve an individual complaint as in the present case is of relevance. If the $1.50 Plan is not valid, the Office would not be taking steps before the Tribunal to force an employer to apply that plan regardless of the presence or absence of an individual complainant.

10. The Tribunal, in these circumstances, was unjustified in taking into account any delay that may have occurred at the Office in making its decision. There was no evidence before it that the Applicant was prejudiced directly as a result of the actions or lack thereof at the Office. Had the Office been notified that the Tribunal was going to specifically consider the conduct of the Office it would've submitted that the applicant was no different position in 2004 when the office received the initial complaint than in 2008 when the order was eventually issued. Further the Office would have been in a position to address the issue of its knowledge of the $1.50 plan and the impact of this knowledge on its processes and jurisdiction so as to provide the proper context for this matter.

52Again, the Tribunal’s finding was that the Office’s delay goes back to 1995 when the Office had notice of the industry-wide adoption of the $1.50 Plan. As set out above and in the Decision, the facts established that Queensway would be prejudiced by the delay.

11. The Tribunal's own jurisprudence has established that it is premature to deal with issues not fully canvassed at review services regarding substantive pay equity issues. The rationale for this approach has been based on ensuring the efficacy of the Review Services investigative and mediative role as set out in the case of Ongwanada (2001-02), 12 P.E.R. 1. The Tribunal in this matter failed to inquire whether the issue of lack of records and impossibility of compliance was raised at Review Services so as to establish its jurisdiction. This is an error in law, so as to justify a reconsideration of the decision.

53The issue before the Tribunal was whether, for reasons stated in the application and submissions, the Order should be set aside. The issue of abuse of process and impossibility of performance could not be raised at Review Services as these issues did not crystallize until the Order was issued. The Tribunal’s consideration of these issues was not an error in law.

12. The Office further submits that the decision amounts to an error in law in the circumstances because it was made without consideration of all the contextual factors as required by Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] S.C.J. No. 43. In Blencoe the Supreme Court of Canada said that "the determination of whether a delay has become inordinate depends on the nature of the case, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay in other circumstances in the case.” The Tribunal's decision, to the extent that it failed to consider the structure of the Pay Equity Act and its underlying policies, the respective roles of Review Services and the Tribunal, and the Tribunal's own jurisprudence with respect to the relevance of the Office's conduct and processes has erred in law.

54The Office states that the Tribunal erred “to the extent that it failed to consider the structure of the Pay Equity Act and its underlying policies, the respective roles of Review Services and the Tribunal, and the Tribunal's own jurisprudence with respect to the relevance of the Office's conduct and processes”. The Office does not explain what it is that the Tribunal ought to have considered above and beyond the contextual factors that it did take into account. The Tribunal did turn its mind to contextual factors as is evident in the Decision.

55For all of the reasons set out above, the Office is not entitled to standing to file the request for reconsideration. If I am incorrect in this determination, it is my further determination that the request for reconsideration ought to be denied.