Pay Equity Hearings Tribunal
Rebecca Farrell Beaton (on behalf of a Group of Represented Child and Youth Workers) and Ontario Secondary Teacher's Federation (OSSTF) (the "Bargaining Agent"), Applicant v. Brant Haldimand Norfolk Catholic District School Board, Responding Party.
Before: Patrick Kelly, Vice-Chair, Ann Burke and Carol Phillips, Members.
Decision of the Tribunal: September 18, 2013
1This is a complaint filed under subsection 22(1) of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) alleging reprisals against a group of Child Youth Workers (“the CYWs”) employed by the responding party (“the Board”), contrary to subsection 9(2) of the Act.
2The Board has brought a motion to dismiss this application on account of delay/abuse of process. The parties have agreed that the Tribunal decide the motion on the basis of their written submissions.
Background
3Ontario Secondary School Teachers’ Federation (“the Federation”) has represented the CYWs and other educational support staff of the Board in a bargaining unit since 1998, when the Board was amalgamated.
4By the end of May 2003, the Board and the Federation negotiated, posted and instituted a pay equity plan (“the Plan”) under which the CYWs and other female job classes in the bargaining unit were entitled to adjustments in their hourly wages. Within about a month after the Plan was instituted, according to the Federation, the Board reduced the weekly hours of the CYWs by 2.5 hours and prohibited the CYWs from accumulating lieu time under the collective agreement. About a year later, the Board laid off six CYWs and, according to the Federation, utilized students and volunteers to perform the work of the CYWs.
5In May and in September 2004, the Federation filed complaints with Review Services of the Pay Equity Commission in response to the treatment of the CYWs. On June 11, 2007, Review Officer Doreen Lurie rendered a Notice of Decision in which she determined that there had been no contravention of the Act. The applicant’s complaint challenging the Review Officer’s decision was filed with the Tribunal on February 1, 2013. Among other things, the applicant seeks by way of remedy the reinstatement of the CYWs who were laid off in 2004.
6From 2004 until 2011, the Board and the Federation were engaged in a dispute concerning a different issue under the Plan: the proper method of implementing the wage adjustments for all the female job classes, including the CYWs. The dispute involved the application of subsection 9(3) of the Act, and played out before the Pay Equity Commission (where, in response to the Federation’s complaint, the Review Officer determined that the Board’s pro-rated method of paying the adjustments did not violate the Act), the Tribunal (where, in determining the Federation’s application for review of the Review Officer’s decision, the Tribunal found that the Board’s method was not permitted under the Act) and finally the Divisional Court which issued a decision dated March 18, 2011, dismissing the Board’s application for judicial review and upholding the Tribunal’s decision.
The positions of the parties
7The Board says the delay is nearly six years, and in that period, the applicant has not raised any issue with Review Officer Lurie’s Notice of Decision. Accordingly, the Board says the delay amounts to an abuse of process. The Board claims serious and substantial prejudice by the applicant’s long-held silence, and that, in any event, a delay of nearly six years must be presumed to cause prejudice. In this regard, the Board points out that four key witnesses who were involved in the Plan on behalf of the Board have retired from employment. The Board contends that it has relied on the silence of the applicant and reasonably relied on the apparent finality of the Review Officer’s determination in conducting its business over the last six years. For these reasons, the Board submits that the complaint should be dismissed without a hearing.
8Quite aside from the delay, the Board strongly denies that the events complained of by the applicant were motivated by any pay equity animus. The Board says it has evidence that:
i) the pay equity adjustments payable to the CYWs represented a fraction of its total pay equity liability;
ii) following the resignation of four CYWs immediately after the implementation of the Plan, the Board hired replacement CYWs; and
iii) the changes affecting the CYWs were the result of funding and service delivery changes in special education.
9In support of its position, the Board referred us to the following authorities:
Peterborough (City) v. Peterborough Professional Firefighters’ Assn., Local 519, [1992] O.P.E.D. No.1
Brampton (City) v. Brampton Professional Firefighters Assn., [1994] O.P.E.D. No. 35
Parry Sound District General Hospital, 1995 CanLII 7205 (ON PEHT)
GL&V Process Equipment Group Inc., 1999 CanLII 14826 (ON PEHT)
Southern Ontario Newspaper Guild v. MacLean Hunter Canadian Publishing, [1993] O.P.E.D. No. 41
Upper Grand District School Board, 2013 CanLII 5971 (ON PEHT)
Windibank v. Windsor (City), [2008] O.P.E.D. No. 2
Queensway Nursing Home, 2010 CanLII 56873 (ON PEHT).
10The Federation points out (and the Board accepts) that there is no time limit in the Act for filing a complaint with the Tribunal, although it acknowledges that subsection 23(1) of the Statutory Powers Procedure Act authorizes the Tribunal to dismiss a complaint on account of delay if the delay amounts to an abuse of the Tribunal’s process. The Federation contends that there is a high threshold to meet for any party alleging abuse of process, amounting to oppression or harassment, and that the Board has failed to meet that threshold in this matter.
11The mere passage of time, the Federation argues, does not establish an intent to harass or oppress, particularly where, as here, the Federation says it had a legitimate reason to delay filing the complaint. In that regard, the Federation says that the Board’s approach to the implementation of the pay equity adjustments under the plan, ultimately found by the Tribunal to be an approach not permitted by the Act, unnecessarily embroiled the parties in years of litigation. In such circumstances, the Federation says its delay in filing the complaint was justified, because it was sensible and prudent of it to first ensure, through the parallel litigation involving the Board’s calculation of the pay equity adjustments, that the pay equity adjustments under the Plan would in fact be made before launching the litigation of this complaint. In any event, the applicant says that it put the Board on notice that that was exactly what the Federation intended to do. The applicant maintains (and the Board denies) that in May 2009, the President of the bargaining unit informed a Superintendent of the Board that the Federation would apply to have Review Officer’s Lurie’s Notice of Decision reviewed by the Tribunal after the resolution of the ongoing litigation regarding the method of paying the pay equity adjustments.
12The applicant submits that, in assessing the issue of abuse of process, the Tribunal must take into account the legitimacy of the issues raised in the complaint. In this regard, the applicant contends that it has raised a legitimate concern that the Board took reprisal actions against the CYWs, and that the timing of those actions is suspect and gives rise to a conclusion that the Board’s actions were motivated by anti-pay equity animus. The applicant argues that the Tribunal should not lightly interfere with the enforcement of pay equity rights and with the interests of the affected workers and society at large in pay equity cases of this kind, by dismissing the complaint at this stage without an inquiry into the merits.
13The applicant disputes the Board’s claim of prejudice. It submits that the Board has not claimed that the four retired witnesses are unavailable, or that they do not remember the events in question, or that the Board is missing documentation that might assist its position in this matter. The applicant further submits that, in light of the parallel litigation dealing with the same Plan, it is unlikely that the evidence the Board might wish to tender in this complaint is unavailable. In any case, given that the Federation informed the Board in May 2009 of its intention to go ahead with a complaint before the Tribunal concerning the treatment of the CYWs, if at that point the Board failed to preserve the relevant evidence, it did so at its own peril.
14In support of its position, the applicant referred us to:
Brant Haldimand-Norfolk Catholic District School Board, [2009] O.P.E.D. No. 27; application for judicial review dismissed, [2011] O.J. No. 1399.
Blencoe v. British Columbia (Human Rights Commission), [2007] 2 S.C.R. 307.
Analysis and Conclusions
15As previously noted, the Act contains no time limits for the making of an application to the Tribunal. However, the Tribunal has previously considered motions to dismiss for delay pursuant to subsection 23(1) of the Statutory Powers Procedure Act (“the SPPA”). Subsection 23(1) reads:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
16The onus is on the moving party to establish that the application constitutes an abuse of process, i.e., “that the Tribunal’s processes are being used as a vehicle to promote oppression or harassment of another party.”1 Or, to put it another way, the moving party must show that, as a result of the delay, it is not possible for the Tribunal to conduct a fair hearing into the issues in dispute.2
17The Board states that the delay is about six years. The applicant does not accept that the delay is of that magnitude, because it contends that about two years after Review Officer Lurie’s Notice of Decision, it put the Board on notice of its intention to bring an application. However, even accepting that to be true, the complaint was not filed with the Tribunal for another four years approximately. That itself is an inordinate delay.
18The Tribunal has refused to find an abuse of process in situations where the delay in question amounted to several months and less than a year: see for example, Brampton (City) v. Brampton Professional Firefighters Assn., supra; GL&V Process Equipment, supra; and the more recent decision in Upper Grand District School Board, supra. The Tribunal has countenanced even longer delays where the parties were engaged in the meantime in meaningful negotiation: Southern Ontario Newspaper Guild v. Maclean Hunter Canadian Publishing, supra.
19However, in the Windibank decision, a delay of seven years, which approximates the length of delay in this case, was deemed to be excessive and inexcusable by the Tribunal, and as such, amounted to an abuse of process. As the applicant points out, though, there were other problems with the application, most notably that the major thrust of Mr. Windibank’s case appeared to have no merit under the Act, and that Mr. Windibank had not even attempted to explain why, prior to filing his application, he had never before raised with his employer his alternative argument concerning the gender dominance of his job class. In other words, it did not seem to be a serious complaint on its face, but rather an attempt by the applicant to derive a benefit under the Act to which he was not entitled.
20In this case, although the applicant has an explanation for the delay, it does not strike us as a particularly compelling one. The applicant points to the parallel litigation involving the Federation and the Board before the Tribunal and the Divisional Court regarding section 9(3) of the Act as the sole reason for not bringing this application sooner. In our view, the litigation at the Tribunal and the Divisional Court regarding the salary grid issue had no relevance to, or bearing upon, the applicant’s ability to pursue the filing of this complaint, nor did the litigation have any relevance to the merits of this complaint. There was no question, as suggested by the applicant, that one of the possible outcomes in the subsection 9(3) litigation was that the CYWs might not obtain their pay equity adjustment. It was a foregone conclusion they would receive that adjustment, the only issue being whether the Board’s calculation of the salary grid step increases was permissible under the Act. This complaint, however, is not a case where the issues of reprisal depended on, or were related to, the outcome of the salary grid issue. The merits of the complaint before us are free-standing. Therefore, we do not accept as reasonable the applicant’s explanation that it did not pursue the complaint simply because the Federation (as opposed to the CYWs themselves) was actively pursuing other litigation against the Board. Nothing prevented the applicant from pursuing a reprisal complaint before the Tribunal.
21The applicant appears to suggest that the delay is the fault of the Board because the Board unreasonably interpreted subsection 9(3) of the Act to permit the method of calculating the salary grid step increases that the Board adopted. Having reviewed the Tribunal’s decision of July 31, 2009 which determined that the Board’s approach was not permitted by the Act, we cannot say that the position taken by the Board was obviously wrong. The Tribunal itself acknowledged that, in siding with the Federation in that matter, the effect of its decision would be to compress the pay grid for female job classes with multi-level pay grids that requires pay equity adjustments. The Tribunal recognized that such a result, which the Board wanted to avoid, would occasion a disruption to the pay grid established in collective bargaining, and that in the past, the Tribunal had attempted to avoid or minimize such disruption. Moreover, the Tribunal's own case law on the subsection 9(3) issue was previously unsettled, with different cases arriving at different conclusions. In the face of conflicting decisions, we cannot conclude that it was unreasonable of the Board to seek clarification through judicial review to the Divisional Court. In any event, that litigation ended March 18, 2011 with the issuance of the Divisional Court's decision. The applicant provided no explanation whatever for its further two year delay in filing the complaint.
22We do not accept, therefore, that the Board was in any way responsible for the delay in the filing of this complaint.
23Further, the delay incurred by the applicant in filing the complaint is not consistent with the applicant’s assertions concerning the seriousness of the layoff of the CYWs, and the other changes in status of the CYWs employment. We would have expected that issues of that gravity would not take nearly six years to be brought to the attention of the Tribunal. Furthermore, a delay of that duration undermines the applicant’s claim that it is seriously committed to a resolution of the issues in dispute, although we acknowledge that, as a general matter, complaints of reprisal under the Act are serious matters.
24The applicant submits that the decision of the Tribunal in Queensway Nursing Home, supra, is distinguishable from the facts in this matter in the sense that the delay in that case (and in Blencoe v. British Columbia (Human Rights Commission supra) was state-caused delay. In that matter, an anonymous employee filed a complaint in 2003 with Review Services of the Pay Equity Commission concerning the non-union pay equity plan, eight years after its posting in the workplace. The employer was not advised of the complaint until 2004, at which point it provided the Review Officer with a copy of the pay equity plan. Nearly three years later, in 2007, the Review Officer informed the employer of her concerns that the plan did not comply with the Act. By that time, all the pay equity adjustments under the plan had been paid out. The employer provided its submissions in response to the Review Officer’s concerns. In mid-2008, the Review Officer issued an order against the employer.
25The Tribunal concluded that the order should be set aside for a number of reasons, including that the delay on the part of the anonymous employee and on the part of the Pay Equity Commission compromised the employer’s right to a fair hearing, and further, that the delay constituted an abuse of process warranting remedial relief.
26In arriving at these conclusions, the Tribunal stated at paragraph 29:
…Whether a delay amounts to an abuse of process is not determined based on the length of the delay alone. Rather, it depends on contextual factors such as the nature of the case and its complexity, the facts and issues in dispute, the purpose and nature of the proceedings, whether the party seeking a remedy contributed to the delay and the nature of the various rights at stake in the proceedings.
27Notwithstanding that the Tribunal recognized the important pay equity interests of the complainant employee, it held that the prejudice to the employer as a result of the delay was not limited to its inability to participate in a fair hearing. The Tribunal also noted that the delay negated the employer’s capacity to mitigate its financial damages and potential liability that it otherwise might have avoided or planned for had there not been inordinate delay. As we have noted, the applicant in this case is seeking the reinstatement of six employees who were laid off nine years ago. Potentially, such a remedy could give rise to very substantial damages.
28The fact that the delay in the Queensway Nursing Home and Blencoe cases was, as characterized by the applicant, “state-caused”, is not, in our view, a compelling reason to ignore the principles that emerge from those decisions. No state agency contributed to the delay in this case, it is true. Regardless of the source of the delay however, there is prejudice as a result. And in considering whether or not there has been an abuse of process, a relevant factor to take into account is the extent to which a party or entity has contributed to the delay. In this case, it is clearly the applicant that is responsible for the delay, and that weighs in the Board’s favour in the assessment of this motion to dismiss the application.
29In our view, the application is an abuse of process because:
the delay is very lengthy even if the Federation gave the Board notice in 2009 of its intent to file the complaint;
the party complaining of the delay did nothing to contribute to it;
the reason advanced by the applicant for its delay is not persuasive;
a delay of several years is presumptively prejudicial. The ability of witnesses to recollect events over that span of time will necessarily be compromised;
the applicant has failed to persuade us that the delay is, in fact, not prejudicial; and,
the fact that the application raises important issues is outweighed by the other factors.
30Whether or not the applicant actually intended to harass or impair the ability of the Board to participate in a fair hearing, that was the effect of the delay. It therefore constitutes an abuse of the Tribunal’s process
31For these reasons, the Board’s motion succeeds.
32The application is dismissed pursuant to subsection 23(1) of the Statutory Powers Procedure Act.
Dated at Toronto this 18th day of September, 2013.
“Patrick Kelly” Patrick Kelly, Vice Chair
“Ann Burke” Ann Burke, Member
“Carol Phillips” Carol Phillips, Member