Adeptron Technologies Corporation v. Frydrych, 2011 CanLII 73127

1This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (the "Act") filed by Adeptron Technologies Corporation ("Adeptron"). This application is currently scheduled for hearing before the Tribunal on December 13, 2011.

2By correspondence dated November 10, 2011, counsel for Adeptron wrote to the Tribunal regarding the hearing and procedure. Counsel refers in this connection to the fact that on November 12, 2010 the parties entered into a Pre-Hearing Conference Memorandum ("Memorandum"), in which they agreed to proceed by way of written submissions to have the Tribunal deal with the applicant's position regarding the application of the Act as set out in paragraphs 22 to 53 of Schedule C of the Application. Counsel also notes that the applicant and Ms. Frydrych subsequently exchanged written submissions as contemplated in the Memorandum. Counsel suggests that the issue regarding the application of the Act could still be dealt with based upon the written submissions filed by the parties and that no additional evidence or testimony is required to address the issue as outlined in the Memorandum. However, in the event that the Tribunal determines that the hearing on December 13, 2011 ought to proceed, counsel seeks confirmation that the hearing will be dealing with the issues as set out in the Memorandum, namely the applicant's position as set out in paragraphs 22 to 53 of Schedule C to the Application. Counsel refers to his understanding that in these circumstances, and subject to the guidance of the Tribunal, the hearing would then appear to be limited to legal argument and additional evidence would not be required from the parties beyond the written submissions already provided.

3Having considered these submissions, and for the reasons that follow, the Tribunal does not agree that the hearing set for December 13, 2011 is not required. The Tribunal is also not in a position to confirm that the hearing will be limited to dealing with the issues as set out in the Memorandum. The Memorandum to which counsel refers is not properly characterized as an agreement of "the parties" given the subsequent interventions filed by four additional respondents (the "Four Respondents"), who have elected to participate in this proceeding. The procedure outlined in the Memorandum is therefore neither binding on the Four Respondents (since they are not parties to it), nor is it, in any event, binding on the Tribunal. The Four Respondents have also not yet had an opportunity to respond to the written submissions the applicant and Ms. Frydrich exchanged as contemplated in the Memorandum. The submissions filed by the Four Respondents to which counsel refers were filed only in response to the Notice of this Proceeding brought to their attention. There is consequently at this stage no agreement between the parties regarding either the appropriate procedure for hearing this application or the facts relevant to it. In the circumstances, the Tribunal does not agree that the issue regarding the application of the Act can be dealt with based on the written submissions already filed without the need of a hearing.

4In addition, since the facts set out in the written submissions cannot properly be characterized as "agreed facts", the parties should come to the hearing prepared to lead any evidence they consider necessary to establish the facts on which they rely in connection with this application. The parties should also be prepared to proceed with the application in its entirety. The Tribunal will nonetheless in the normal course entertain any submissions the parties wish to make regarding the appropriate procedure for addressing this application at the outset of the hearing.