Pay Equity Hearings Tribunal
3667-09-PE Service Employees International Union Local 1 Canada, Applicant v. Revera LTC - Blenheim Community Village, Responding Party.
3669-09-PE Service Employees International Union Local 1 Canada, Applicant v. Harold and Grace Baker Centre, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair, Catherine Bickley and Paul LeMay, Members.
APPEARANCES: Cathy Lace, Nadine Brum, Daina Green, Roger Renaud, Tanya Ferguson, Anna Gallo, Annette Lucio and April Knowler appearing for the applicant; Lisa Corrente, Bob Bass and Peter Tsoporis appearing for the responding party.
DECISION OF THE TRIBUNAL: July 8, 2011
Decision
These are applications under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) made by Service Employees International Union, Local 1 (“the union”) with respect to Notices of Decision of Review Officer Doreen Lurie in respect of two employers, Harold and Grace Baker Centre (“Baker Centre”) and Blenheim Community Village (“Blenheim”). We shall refer to Baker Centre and Blenheim collectively as “the respondents” or “the employers”.
The Review Officer determined that the employers, who each operate a nursing home and retirement home at common municipal addresses, did not violate the Act by failing to extend the proxy pay equity plans at each facility in respect of the nursing home employees to the retirement home employees.
On the first day of the hearing in these matters, April 18, 2011, the Tribunal entertained a motion by the employers in which it was submitted that the union ought to be precluded from advancing the argument that the respondents are each bound to apply the proxy pay equity plans in their respective operations to the retirement home employees as well as the nursing home employees. The respondents say that the union is estopped from making that argument by virtue of a Letter of Understanding between the parties, dated December 2, 2004 and because that argument was not made by the union in the course of the review process before Review Officer Lurie. The union, on the other hand, submits that it did make the argument before Review Officer Lurie, and that, in any event, estoppel does not apply in the circumstances of this case.
The oral argument on the motion was not completed on April 18, 2011. Consequently, the respondents were permitted to make their reply submissions in writing two weeks later.
The following facts are either agreed or not disputed for the purposes of this motion. Baker Centre is a nursing home and retirement home in Toronto, managed by Revera LTC. The union has been the bargaining agent since 1984, representing a combined bargaining unit of nursing home and retirement home employees. Revera LTC owns and manages Blenheim in Blenheim, Ontario. Like Baker Centre, Blenheim offers nursing home and retirement home accommodation and services on the same site, and the employees of both sides of the operation are in the same bargaining unit. The union has been the bargaining agent for that bargaining unit since 1996.
Both employers are public sector employers under the Act with respect to their nursing home operations. They each developed proxy pay equity plans pursuant to the Act. At Blenheim, before the union obtained bargaining rights in 1996, the pay equity plan applied to the non-union employees only. Retirement home employees working in Blenheim and in Baker Centre initially received wage increases that mirrored the first pay equity adjustments for the nursing home employees under the proxy pay equity plans. (The union characterizes these as pay equity adjustments for the retirement home employees, whereas the respondents say they were simply general wage increases). Further pay equity adjustments were paid to the nursing home employees, but the respondents did not provide corresponding payments to the retirement home employees. That prompted the filing of a grievance at Blenheim. Furthermore, in 1999, complaints were filed by the union with the Pay Equity Office that the retirement home employees were not receiving pay equity adjustments as their counterparts in the nursing home operation were. The position of the respondents was that they were not public sector employers in respect of the retirement home employees and, therefore, those employees were not entitled to the benefits of the proxy pay equity plans.
The grievance filed by the union at Blenheim was referred to arbitration, but the union agreed to an adjournment of the scheduled hearing while the complaint proceeded through review services at the Pay Equity Office.
As it turns out, similar complaints had been referred to the Pay Equity Office by other Locals of Service Employees International Union and by Canadian Union of Public Employees on behalf of retirement home employees working in “adjacent facilities” like the employees in Baker Centre and Blenheim. In those matters, the Review Officers declared the employers to be “seeking employers”, thus treating them as public sector employers required to complete proxy pay equity plans for the retirement home employees. Applications to the Tribunal followed, and a panel of the Tribunal dealt with all of them in a single, very lengthy hearing. By decision dated December 17, 2001 in Helen Henderson Care Centre, [2001] O.P.E.D. No. 12, the panel concluded that each employer was a public sector employer, and that their entire operations, including their retirement homes, were subject to the proxy method of wage comparison.
Less than two months later, O. Reg. 37/02 made under the Act was enacted. It made clear that nursing home employers fell within the meaning of public sector employers only in respect of their nursing home beds funded by the Province. In other words, retirement homes, which did not receive such funding, were not public sector employers.
Shortly around the time of the enactment of O. Reg 37/02 the Tribunal was asked to reconsider its December 17, 2001 decision. It declined to do so. One of the employers filed for judicial review of both Tribunal decisions before the Divisional Court. Meanwhile, the union communicated with the Pay Equity Office and with the respondents, insisting that the result in the Helen Henderson decision should obtain in the Baker Centre and Blenheim workplaces. The union also stated to its members that their pay entitlements were linked to the outcome in the Helen Henderson matter.
The parties met over the course of 2003 and 2004 to negotiate/mediate a resolution to the outstanding dispute at Baker Centre and Blenheim, while the judicial review was pending. The process led to the Letter of Understanding described earlier, in December 2004, which became part of the Blenheim and Baker Centre collective agreements expiring in 2007. The Letter of Understanding reached in respect of Baker Centre (which mirrors the one reached for Blenheim) reads:
LETTER OF UNDERSTANDING
Re: Retirement Home Pay Equity Issue at Blenheim and Baker Centre
The parties are in dispute over the pay equity obligations for the Retirement Home employees at these sites.
Accordingly the Union reserves its rights to pursue further pay equity adjustments for employees in these retirement home classifications, pending the final legal outcome of the Helen Henderson Tribunal decision presently before the courts.
For Central Care Corporation For SEIU Local1.on
“Illegible" “Illegible"
“Illegible " “Illegible "
The Divisional Court’s judgment in Caressant Care Nursing Home of Canada Ltd. v. London and District Service Workers’ Union, Local 220, 2006 CanLII 13791 (ONSCDC) was issued on April 12, 2005. The Court observed that the proxy method of comparison was never intended to apply to private sector businesses, including the retirement home business. The Court quashed the Tribunal’s determination in Helen Henderson that the statutory term “public sector employer”, if applicable to any aspect of an employer’s business (i.e. the nursing home operation), was appropriate for all aspects of an employer’s business (including the retirement home operation). The Court, however, left open the possibility of a finding, based upon a careful review of the evidence, that employees at the retirement home were so intertwined with the functions of the nursing home that it was not possible to say they were truly in a different workplace. The matter was remitted to the Tribunal for a new hearing.
On or about December 22, 2005, counsel for the union sent the following letter to the Pay Equity Office in respect of the Baker Centre pay equity dispute (a similar letter was issued regarding the Blenheim matter):
December 22, 2005
Via Facsimile (416) 314-8741
Mr. Bruce Budd
Pay Equity Office
400 University Avenue, 11th Floor
Toronto, Ontario M7A 1T7
Dear Mr. Budd:
Re: Service Employees International Union and Harold and Grace
____ Baker Centre; File Nos. 99.12157 and 01.13256___________
The Union wishes to proceed with this case in light of the recent decision of the Divisional Court in Caressant Care Nursing Home of Canada Ltd. and London and District Service Workers' Union, Local 220. The Union's position is that the operation of the nursing home beds and the retirement home beds are so intertwined that it is appropriate to treat the nursing home and retirement home operations as a single workplace for the purposes of pay equity. In addition, the Union maintains (as outlined in previous submissions) that Regulation 37/02 is invalid.
Sincerely,
Cathy Lace
Leave to appeal the Divisional Court decision in Caressant Care was denied by the Court of Appeal.
In the subsequent round of collective bargaining at Baker Centre and at Blenheim, the Letter of Understanding on pay equity was not included in the renewal collective agreements.
The issue for determination at this stage is whether or not the Letter of Understanding limited the scope of the pay equity dispute between the parties to the issues and the final outcome in the Caressant Care case. The respondents say that the Letter of Understanding must be read restrictively, within the parameters of the Caressant Care decision. That being the case, the union is left to argue that the employees in the retirement home at Baker Centre and at Blenheim are so intertwined with their counterparts in the respective nursing homes that it is impossible to say they were truly in a different, separate workplace. The respondents say the union is estopped from raising the issue it now wishes the Tribunal to determine: whether or not the proxy pay equity plan in each establishment was intended by the parties to be, and was in fact, applied to both nursing home and retirement employees and therefore effectively covers both groups. This is described by the respondents as the “single plan” argument, and they say the union is precluded, on the theory of estoppel, from advancing it in this case.
In support of their estoppel argument, the respondents relied upon Canadian National Railway Co. v. Beatty, [1981] O.J. No. 3137 (Div. Ct.) and an arbitration award in Board of Commissioners of Police for the Township of Innisfil (Re) 1985 CanLII 5357 (ON LA), 19 L.A.C. (3d) 263 (Hinnegan).
Estoppel is an equitable doctrine of contract law. It is based on the principle that it would be unfair to permit a party to repudiate a representation it has made through words or conduct that has caused another party to act as it would not otherwise have done. In this case, there has not been a representation, as such, by the union to the respondents; rather, the parties entered into an agreement ancillary to the collective agreement. Nevertheless, we assume that, for the purposes of this decision, the doctrine of estoppel may arise out of such an ancillary document.
The question then becomes, what was the intention of the parties in concluding the Letter of Understanding? Neither party argued that the language of the Letter of Understanding was ambiguous. Therefore, there is no need to consider extrinsic evidence to determine the parties’ intention. It must be gleaned from the language of the Letter of Understanding.
The respondents’ position is that the Letter of Understanding obliges the parties thereto to accept the issues and the ultimate determination of those issues in the Helen Henderson decision as their own in their pay equity dispute. The union’s view is that the Letter of Understanding was nothing more than a truce in the parties’ pay equity dispute until the final result in Helen Henderson became known, at which time the parties were entirely free, if necessary, to return to the dispute at hand without any limitation on the rules of engagement.
In our view, the union’s interpretation of the Letter of Understanding is to be preferred. Clearly, the union preserved any and all rights to pursue pay equity adjustments for retirement home employees at Blenheim and Baker Centre until (“pending”) the final legal outcome in the Helen Henderson case. The union simply agreed to hold off the pursuit of those claims until that time. Nothing in the language of the Letter of Understanding limits the arguments, tactics, strategies, approach or line of attack the union might or might not take to obtain pay equity for the retirement home employees once Helen Henderson was finally decided. The union did not agree to be bound to the legal outcome in that matter, as suggested by the respondents, or to be restricted to the legal arguments found ultimately in that case to be valid. Had it done so, the language of the Letter of Understanding could have been crafted to that effect. All that the union agreed to do was not to push its pay equity claims while the litigation was unfolding. It promised only “to keep its powder dry”, as it were, for another day, perhaps in the hope that it would not be necessary to engage in litigation after the Courts had ruled in the other matter.
That being the case, no issue of estoppel arises in this case. The union’s promise was to suspend its pursuit of pay equity adjustments until the final result in the Helen Henderson matter. The Court of Appeal’s decision to refuse leave to appeal the Divisional Court decision in Caressant Care was, effectively, the end of the legal road started by the Helen Henderson decision. The union was free to proceed against Blenheim and Baker Centre at that point on the outstanding pay equity dispute. By doing so, it did not repudiate its undertaking as set out in the Letter of Understanding. The employer therefore is in no position to raise an estoppel.
Given our finding, it is unnecessary to consider the main argument of the union that an estoppel cannot arise so as to release the respondents from the positive duties imposed upon them by a statute such as the Pay Equity Act.
The respondents’ preliminary motion is dismissed.
The parties are to advise the Acting Registrar of their availability with respect to further hearing dates.
“Patrick Kelly”
Patrick Kelly, Vice-Chair
“Catherine Bickley”
Catherine Bickley, Member
“Paul LeMay”
Paul LeMay, Member