Pay Equity Commission v. Contact Creative Services Inc., 2011 CanLII 37954

0463-10-PE Pay Equity Commission, Applicant v. Contact Creative Services Inc., Responding Party.

BEFORE: Mary Anne McKellar, Vice-Chair, Paul LeMay and Catherine Bickley, Members.

DECISION OF THE TRIBUNAL: June 27, 2011

1This decision deals with a request for reconsideration of a Tribunal decision issued July 19, 2010. The background to this request is set out below.

2The Pay Equity Office (“the PEO”) made an application under section 24(5) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”) to enforce the Order of a Review Officer dated March 24, 2010 (“the Second Order”). Previously, the same Review Officer had issued an Order dated April 7, 2009 (“the First Order”) against the responding party employer (“the Employer”). The PEO had also initiated enforcement proceedings in respect of the First Order (Tribunal File No. 1635-09-PE), but that application was adjourned sine die and automatically terminated when not brought back on for hearing prior to the expiry of the period of adjournment. At that point, the current application was commenced.

3Both applications for enforcement state on their face that they were delivered to Andrew Fox, the owner of the Employer, and to Bill Anderson, the Employer’s Plant Manager. Similarly, the Tribunal’s Confirmation of Filing in each application was sent separately to those two individuals. Among other things, the Confirmation of Filing advises responding parties of their obligation to file a response and the timeline for doing so.

4The Employer did not file a response to this application (nor to the earlier application), nor did it file its own application objecting to the merits of the Second Order (or the First Order).

5Applications for compliance are governed by subsections 24(5), (5.1), (5.2), and (5.3) of the Act:

24. (5) Where an employer or a bargaining agent fails to comply with an order under this section, a review officer may refer the matter to the Hearings Tribunal.

(5.1) The Pay Equity Office shall be deemed to be the applicant for a reference under subsection (5).

(5.2) On a reference under subsection (5), the Hearings Tribunal shall not consider the merits of the order that is the subject of the reference.

(5.3) On a reference under subsection (5), the person against whom the order was made has the burden of proving that he, she or it has complied with the order.

6This application was dealt with by way of written submissions, without an oral hearing. By decision dated June 30, 2010, the Tribunal noted that no response had been filed, and that the onus in an application under section 24(5) rests with the responding party. The Tribunal offered the Employer an opportunity to file written submissions setting out why the Tribunal should not simply determine that the Order had not been complied with, and direct compliance. As with all other correspondence in this file (and the earlier one), a copy of that decision was sent separately to each of Andrew Fox and Bill Anderson.

7No submissions were received from the Employer pursuant to the Tribunal’s June 30, 2010 decision. On July 19, 2010, therefore, the Tribunal determined that the Order had not been complied with, and directed that the Employer comply with it by paying to the individuals identified in the Order the amounts that had been determined to be owing to them. Again, this decision was sent separately to each of Andrew Fox and Bill Anderson.

8The Employer has now filed a request for reconsideration in which it identifies the decision sought to be reconsidered as the one dated June 30, 2010. That decision, as indicated above, did not in fact decide anything, but merely solicited written submissions from the Employer. There is, therefore, no basis for reconsidering it. We are treating the Employer’s request instead as one to reconsider the July 19, 2010 decision. Normally this request would be dealt with by the same panel that rendered the July 19, 2010 decision, however that is not possible in this case as one of the panel members has since retired.

9The Employer’s submissions in support of its request for reconsideration evidence some confusion on its part about the roles of the Pay Equity Office and of the Tribunal. The Pay Equity Office employs Review Officers who investigate and make orders respecting contraventions of the Act. Their decisions to make an order (or not) may be the subject of an application to the Tribunal by a party affected by the order. The Pay Equity Office itself (as occurred here) may apply to the Tribunal where it is of the view that an order made by a Review Officer has not been complied with. The Tribunal is a stand-alone independent tri-partite quasi-judicial agency comprising members appointed by the Lieutenant-Governor in Council. The Tribunal conducts pre-hearings and hearings. It provides notice of such proceedings to the parties and to persons it identifies who may have a legal interest in the outcome.

10There appear to be three grounds asserted for the reconsideration request:

(1) the Employer did not have notice of and the opportunity to participate in the proceeding and Bill Anderson did not have actual authority to represent it at any time;

(2) the Second Order is wrong; and

(3) the Employer did not have any knowledge of the Tribunal’s decisions.

11The remedy sought is that the Tribunal vary the Second Order, and that it stay the garnishment proceedings that have commenced to enforce it.

12The request for reconsideration is dismissed, for several reasons.

13The request for reconsideration is not timely. The Tribunal’s Rules of Practice specify that, “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” (Rule 81). The Employer has not specifically requested that the Tribunal extend the time for the making of this request, nor has it provided any compelling reason why we should do so. While we appreciate that the Employer asserts it had no knowledge of the July 19, 2010 decision until garnishment proceedings to realize on the amounts determined in the Order were commenced in March 2011, which would explain the greater part of the delay in filing the request, the fact remains that the request for reconsideration was not even made within the 20-day period following the commencement of the garnishment efforts, and there is simply no explanation for that delay. The untimeliness of this request in and of itself is sufficient reason to dismiss it.

14Even if the request for reconsideration were not untimely, there are other reasons to dismiss it. The only question the Tribunal could decide in this application was whether the Employer had complied with the Order – it is statutorily precluded from considering the merits of the Order (see section 24(5.2)). The focus of the Employer’s reconsideration request, however, is on the merits of the Order, namely the determination that a particular job class was female and entitled to a pay equity adjustment. That issue was not and could not be before the Tribunal on this application, and the Tribunal did not consider or decide it. There is nothing in the Employer’s request that suggests there was any error in the Tribunal’s only determination -- that the Employer had not complied with the Order. There is therefore no basis for reconsidering the Tribunal’s decision.

15It is not clear how the issue as to Bill Anderson’s authority to deal with pay equity matters on behalf of the Employer can support a request for reconsideration of the Tribunal’s July 19, 2010 decision. The application, the Confirmation of Filing, and both Tribunal’s decisions were sent to both Bill Anderson and to the owner of the Employer, Andrew Fox. Neither of these individuals (or anyone else purporting to represent the Employer) responded to the application, or to the Tribunal’s June 30, 2010 invitation to make submissions. The Tribunal had no choice in the circumstances but to find that the Second Order had not been complied with, and to direct compliance.

16For all of the above reasons, the request for reconsideration is dismissed.