Norwood Nursing Home v. Barbara Michalik, 2011 CanLII 8246

Norwood Nursing Home v. Barbara Michalik

2016-10-PE Norwood Nursing Home, Applicant v. Barbara Michalik, Meseret Manyahelal, Service Employees International Union, Local 1, Responding Parties v. Pay Equity Office, Intervenor.

BEFORE: Diane L. Gee, Chair.

DECISION OF THE TRIBUNAL: February 22, 2011

1This matter is an application filed by Norwood Nursing Home ("Norwood") pursuant to section 24(6) of the Pay Equity Act, R.S.O. 1990, Chapter P.7 (the “Act”). Norwood seeks an Order from the Pay Equity Hearings Tribunal (the “Tribunal”) revoking the Order of a Review Officer dated July 16, 2010.

2The Pay Equity Office (the "PEO") has filed a Notice of Motion in which it seeks to be granted standing to intervene. The responding parties assert that the PEO should be permitted to participate in this matter to move to strike out paragraphs 61-74 of the Applicant’s Application relating to abuse of process and delay allegations and to the extent that the proceeding addresses issues related to the PEO’s practice and jurisdiction. Norwood is opposed to the PEO’s request to intervene.

3The Tribunal is satisfied that the PEO is in a position to provide the Tribunal with an expertise concerning the policy, factual or legal issues in dispute in this matter that is different from that of either the applicant or the responding party. The Tribunal believes that, to the extent the Tribunal is able to address issues relating to the PEO’s practice and jurisdiction, the PEO’s participation in this matter would be of assistance to the Tribunal. Accordingly the Tribunal grants the PEO standing to intervene in this matter.

4Norwood submits that the Order should be revoked for the following reasons:

(a) The original pay equity plans posted and implemented by Norwood (together the “Pay Equity Plans”) were developed and implemented in compliance with the proxy provisions of the Act and are valid pay equity plans;

(b) The Pay Equity Plans meet the objectives of the Act in that they redress systemic gender discrimination in compensation for work performed by employees in female job classes at Norwood;

(c) If the Order is not revoked, it will result in considerable wage disparities among female employees working in the nursing home industry and Ontario, including as amongst the employees at Norwood. The Order would result in absurd consequences based on irrational distinctions which would be contrary to the purposes of the Act;

(d) The pay equity plan posted by Norwood on December 31, 2003 is a deemed approved plan pursuant to the Act given that no timely objections were filed by the affected employees;

(e) There has been undue delay by the anonymous employee(s) in filing the Application for Review Services at issue. Further, there has been significant delay by the Pay Equity Commission (“Commission") in dealing with the Application for Review Services. The undue delay by the anonymous employee(s) and by the Commission has substantially prejudiced Norwood such that the Order amounts to an abuse of process and breach of procedural fairness.

5The responding parties have filed a thorough response in this matter as a result of which the Tribunal understands the facts to include the following:

(a) Norwood began operations prior to 1988.

(b) Pursuant to the proxy provisions of the Act Norwood was required to post a pay equity plan by December 31, 1993. Norwood did not do so.

(c) An employee of Norwood filed a complaint with the Commission in 1999. This file was subsequently closed and was not the genesis for the Commission’s 2010 Order.

(d) On April 4, 2006 the Commission opened a monitoring file in respect of Norwood.

6Norwood is hereby directed to deliver to the other parties and file with the Tribunal no later than March 3, 2011 a letter in which advises as to whether it is in agreement with the foregoing “facts”.

7The responding parties have asked for a number of paragraphs in the Application to be struck on the basis that they are irrelevant. Another way of approaching the responding parties' arguments may be to consider whether, assuming the facts set out in the application to be true, the Tribunal would rule in Norwood’s favour in any event.

8This matter is hereby referred to the Registrar in order to be listed for a pre-hearing conference. The parties should come to this conference prepared to discuss the most expeditious way of having this matter adjudicated.