Marc Bertrand et al. v. York Catholic District School Board, 2014 CanLII 103781

Court File and Parties

0641-13-PE Marc Bertrand (on behalf of a group of employees identified on Schedule "A" and anonymous employee(s)), Applicant v. York Catholic District School Board, Respondent.

0875-13-PE Frances Smith, Applicant v. York Catholic District School Board, Respondent.

1794-13-PE Catherine Franko, Lynne Hoevenaars, Sonja Kohler, Janet Mullally, Michelle Prinzo and Emanuela Ruth, Applicants v. York Catholic District School Board, Respondent.

BEFORE: Patrick Kelly, Vice-Chair, Ann Burke and Carol Phillips, Members.

DECISION OF THE TRIBUNAL: February 25, 2014

Decision

1These are applications under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) brought by non-union employees of York Catholic District School Board (“York” or “the employer”) in respect of York’s posted non-union pay equity plan (“the Plan”). The Plan was the subject of an Order dated April 8, 2013 (“the Order”) of Review Officer Doreen Lurie (“the Officer” or “Officer Lurie”).

2This decision deals with certain preliminary issues raised by the parties. As each application challenges the same Plan, it is convenient to deal with the preliminary issues in a single decision. Whether or not these applications can or should be consolidated or listed together for hearing before the same panel of the Tribunal are not matters that need be dealt with now.

3The applicant in Tribunal File No. 0641-13-PE is a group of employees in the female job class of Behaviour Resource Workers (“the BRWs”). The applicant in Tribunal File No. 1794-13-PE is a group of employees in the female job class of Psychological Associates (“the PAs”). The applicant in Board File No. 0875-13-PE, Frances Smith (“Ms. Smith”) is the sole incumbent in the job class of Secretary to Director’s Office – Trustee Services (“the SDO job class”). The issues in all threes matters are similar. At the risk of oversimplifying, the BRWs, the PAs and Ms. Smith say that the job evaluations of their respective job classes under York’s posted pay equity plan (“the Plan”) were not accurately and/or reasonably conducted. As a result, they challenge the placement of their job classes within the hierarchy of all the non-union job classes.¹

4One of York’s preliminary motions is that all three applications should be dismissed for failure to disclose a prima facie breach of the Act. The applicants, of course, oppose York’s motion for a preliminary dismissal, and the BRWs and PAs expressly complain that they are hampered by the employer’s refusal to provide them copies of certain documents. The BRWs have expressly requested a Tribunal order requiring York to produce documents, and the PAs say they will further particularize their pleadings once York provides them with their list of requested documents. We shall flesh out these and other preliminary matters in more detail later in the decision, following a brief description below concerning what these applications are about.

5It appears undisputed that York posted a non-union pay equity plan in 1991 that did not comply with the Act, and at Officer Lurie’s direction in around March 2011, the employer started from scratch, as it were, to develop a new non-union plan with the help of a pay equity consulting firm. That Plan, which is the subject of these applications, was posted on November 1, 2011. Initially the BRWs, and subsequently the PAs and other employee groups filed timely objections to the Plan with Review Services of the Pay Equity Commission. Ms. Smith did not. If she ever sought out the assistance of Review Services – no record of such has been provided to the Tribunal - it was after Officer Lurie made her Order on April 8, 2013, and after York amended and re-posted the Plan in compliance with Officer Lurie’s Order, on April 22, 2013. In any event, to our knowledge, no Order was ever issued by Review Services in respect of Ms. Smith’s complaint.

6After reviewing and investigating the objections filed by the BRWs, the PAs and others, Officer Lurie determined that the job evaluation rating of the PAs was entirely reasonable. Thus, the PAs remained in their original point band (SVG 9) under the Plan, compared to the same male job class comparator, and did not receive a pay equity adjustment. The Officer further determined that the job evaluation rating of the BRWs was mostly reasonable, but found that two of the twelve sub-factors used to assess the non-union jobs under-valued the BRWs’ work. The Officer therefore made upward adjustments to the “Experience” and “Physical Effort” sub-factors, resulting in a change in the scoring of the BRW job class. However, the higher score was not sufficient to move the BRW job class from the SVG 6 level to a higher point band or to result in a comparison of the BRWs to a different male comparator. In any event, the employer incorporated the adjustments to the BRW job class as directed by the Officer, and posted an amended version of the Plan on April 22, 2013.

7Although there are some differences between the BRWs, the PAs and Ms. Smith with respect to the specific alleged failings of the evaluations of their respective job classes, they are unified in their objection that the evaluations did not reasonably take into account of the full scope of their duties and responsibilities. Accordingly, they say the Plan does not comply with the Act.

8York, on the other hand, contends that there is no basis in any of the three applications to alter anything in Officer Lurie’s Order. The employer says that the BRW, PA and SDO job classes were evaluated reasonably, and while it does not necessarily agree with Officer Lurie’s upgrades to the BRW scoring, it takes no issue with them in these proceedings.

9With this context in mind, we return to the preliminary issues referred to above. York takes the position that each application fails to disclose a prima facie contravention of the Act, and therefore should be dismissed. More precisely, York contends that none of the applicants has pleaded specific facts that, if true, would lead the Tribunal to find a breach of the Act. The applicants, York submits, are simply dissatisfied with the ratings their respective job classes received under the Plan. York contends that that is insufficient to maintain a complaint pursuant to the Act. The applicants must demonstrate what was unreasonable about the evaluations of their job classes, and since there are no such allegations pled, the applications must fail. With respect to Ms. Smith’s application, there is an added feature to this argument. Ms. Smith failed to file a timely objection to the Plan under subsection 15(7) of the Act. Accordingly, the employer argues, the Plan was a deemed approved pay equity plan under subsection 15(8), which reads:

(8) If no objection in respect of a pay equity plan is filed with the Commission under subsection (7), the plan shall be deemed to have been approved by the Commission and, on the day provided for in the plan, the employer shall make the first adjustments in compensation required to achieve pay equity.

10As we understand it, York’s position is that, because the Plan is allegedly a deemed approved pay equity plan vis-a-vis Ms. Smith, she is precluded from complaining about it, or at the very least, she must plead facts which establish that the employer breached a provision under Part I of the Act that requires a standard of correctness, as opposed to reasonableness.

11The test by which a prima facie motion to dismiss is to be measured was first articulated by the Tribunal in Peterborough (1991), 2 P.E.R. 86. The passage below not only sets out the test, it also distinguishes between applications that fail to disclose a prima facie case (which results in dismissal) and applications that are merely lacking in particulars (which can be rectified by an order for particulars):

6. On a motion for dismissal on the basis of failure to make out a prima facie case, a tribunal must decide whether the applicant has made out a case on the face of the written material filed as the application. For this purpose, the applicant is permitted to make its best case by treating everything it has alleged as if it were true. A failure to establish a prima facie ease means that even if the applicant could prove all its allegations, the tribunal could do nothing for it because the facts alleged do not constitute a violation of the relevant statute. If the applicant's best case does not provide the basis for a remedy, the application is dismissed; if it would provide a basis for a remedy, however, the assumption of truth is forgotten: the ease proceeds to permit the applicant to prove its allegations and the respondent to respond to them.

7. An applicant must make out a set of circumstances which, if proved, the Tribunal can rectify in the manner requested by the applicant. There are times when the applicant may make out a case which could be rectified by the Tribunal, but does not provide sufficient information for the respondent to answer the casefully; then the Tribunal might order the applicant to provide further particulars about the circumstances underlying its claim. But such cases must be distinguished from those in which his clear on the material filed by the applicant that the Tribunal could not rectify the circumstances set out by the applicant in the manner requested; then there is no point in proceeding: hence the authority to dismiss for failure to establish a prima facie case.

12York places significant reliance upon the case of Centennial College, 2002 CanLII 49436 (ON PEHT). That matter also involved an attack against a non-union pay equity plan on the basis, in part, that the job class evaluation used to establish the pay equity plan did not properly value some of the contents of the applicants’ (former employees of the College) work. The Tribunal dismissed that case on the basis that it failed to disclose a prima facie violation of Part I of the Act. However, as counsel for the BRWs points out, Centennial College involved a “deemed approved pay equity plan” in which no timely objections to the pay equity plan had been made after its posting. Once a posted pay equity plan has drawn no objections within the statutory period, it is deemed to be approved by the Pay Equity Commission and the employer is required by the Act to implement its terms, including making any payments required under the pay equity plan (see subsection 14(8) and (9) and subsection 15(8). In those circumstances, the Tribunal has said that it will only examine an impugned deemed approved plan where the applicant’s pleaded case makes out a violation of Part I of the Act dealing with the principal pay equity obligations which must be achieved by employers. That is because of the considerable prejudice an employer will suffer if the deemed approved pay equity plan is subsequently found not to comply with the Act, particularly if pay equity adjustments have been paid out.

13York does not claim that the Plan is a deemed approved plan insofar as it applies to the BRWs and the PAs. (It does, however, make that contention regarding Ms. Smith’s application.) Accordingly, the Tribunal cases, such as Centennial College, dealing with deemed approved pay equity plans relied upon by York to support its prima facie motions against the BRWs and the PAs are distinguishable. The BRWs and the PAs are not confined to a Part I challenge, although, indeed, they claim that at least some provisions in Part I have been violated.

14The BRWs’ application maintains that the BRW job class was “improperly evaluated” and implies that the evaluation that was conducted was not objective or sufficiently comprehensive. The application raises specific concerns about certain sub-factor ratings in the gender neutral comparison system (“GNCS”) that had been raised with Officer Lurie. The application also raises further concerns about other sub-factor ratings for the BRW job class that had not been specifically brought to Officer Lurie’s attention. As a result, the BRWs say their job class ought to have received an overall rating that places it in SVG 7, not in SVG 6, and they seek pay equity adjustments retroactive to 1991. The BRWs cite a number of provisions of the Act upon which they rely. Among those provisions cited by the BRWs are subsection 5(1) (which describes the criteria to be applied in determining the value of work), 5.1(1) (which defines how pay equity is achieved), and section 12 (which requires Part II employers to compare female job classes with male job classes using a gender-neutral comparison system in order to determine whether pay equity exists for each female job class).

15Similarly, the PA’s application contends that the PA job class was not evaluated in an accurate or reasonable way, and was not compared to the appropriate male comparator. More precisely, the PAs contend that the evaluation of their job class did not take into account the amount of training, level of education and specific knowledge required to perform the PA’s work, failed to account for the nature of the contact PAs have with internal and external stakeholders, and downplayed their ability to make autonomous decisions. The PA application, like the BRW application, alleges a violation of section 5(1) and 5.1(1) of the Act. The PAs seek an order to increase the rating of their job class, apply the appropriate male comparator, and pay the resulting pay equity adjustments retroactively to the Plan’s effective date.

16In our view, the BRW and PA applications ought not to be dismissed for failure to disclose a prima facie case. We are not satisfied that, assuming all the facts pled by the BRWs and the PAs to be true and provable, there is no remedy that the Tribunal could grant the applicants. In Upper Grand District School Board, 2013 CanLII 5971 (ON PEHT), a trade union sought the dismissal of the School Board’s application for failure to disclose a prima facie case. The application called into question the job evaluation ratings of several male job classes. The School Board alleged that those male job classes had been undervalued. The Tribunal found that the School Board was entitled to a hearing of that issue, and dismissed the trade union’s prima facie motion. In our view, the same reasoning applies to the BRW and PA applications.

17We turn next to York’s contention that the PA application should be dismissed for delay. York’s objects “on the basis of undue delay to a retroactive application of any remedy beyond the posting of the 2012 Amended Plan.” York does not contest the timeliness of the filing of the PAs’ objection with the Pay Equity Commission regarding the evaluation of their job class, and therefore does not contest the timeliness of the PA’s application to the Tribunal.

18York’s motion to dismiss for delay is really an argument about the scope of the remedial relief sought by the PAs.² The PAs say that any monetary adjustments to which they may be entitled under the Plan must be retroactively calculated with 1991 as the starting point. York submits that the PAs did not challenge the 1991 pay equity plan (which was subsequently found to not comply with the Act) and that, to now claim retroactive payment back to 1991, is “over-reaching and untimely” and constitutes an abuse of process.

19This motion too must fail. What is in issue before us is not the 1991 pay equity plan, but rather the Plan that was posted in November 2011 and amended and re-posted in February 2012. We also note that the Plan itself identifies January 1991 as the effective date, and it refers to the notion of retroactivity with respect to the six female job classes that were identified in the Plan as requiring pay equity adjustments. It is hardly surprising, then, that the PAs (and the BRWs for that matter) are claiming retroactive payments under the Plan going back to its stated effective date. In any event, we need not make any final determination concerning the scope of the remedial relief sought by the PAs. That can be dealt with in the course of the hearing.

20We turn next to York’s submission that the Tribunal has no jurisdiction to entertain any allegations in the BRW application that were not submitted to the Review Officer. In this regard, the BRWs’ application makes allegations relating to seven sub-factors in the gender neutral comparison system, three of which were not raised by the BRWs with the Review Officer. In addition, the BRWs now suggest that they compare favourably with job classes in SVGs 8 and 9 of the Plan, whereas their complaint to Officer Lurie was their job class ought to be grouped with the job classes in SVG 7.

21In Ontario (Liquor Control Board), [1994] O.P.E.D. No. 27, the Tribunal was faced with a similar issue. There the employee applicants had clearly raised with the Review Officer the allegation that their termination from employment was a breach of subsection 9(2) of the Act. However, their application before the Tribunal included further allegations that the respondent employer had breached pay equity settlements which resolved earlier complaints brought by the applicants. Those further allegations (and the remedies sought by the applicants as a result) had not been raised with and/or determined by the Review Officer. The Tribunal reasoned, following a review of several of its prior decisions, that the further allegations concerning the settlements were not properly before the Tribunal. Among its reasons, the Tribunal was not satisfied that the applicants had exhausted the Review Services process. However, in declining to deal with the additional allegations, the Tribunal made clear that the applicants were not precluded from going back to Review Services to request an investigation into their concerns about the settlements.

22The BRWs counter York’s submission by pointing out that the reason they did not raise with Review Services their concerns about the three additional sub-factors which are raised in the BRW application to the Tribunal is the refusal of Officer Lurie to order production of all the documents the BRWs requested at first instance. They argue that the limited disclosure they received from Officer Lurie regarding documentation related to a job class known as Behaviour Resource Specialist restricted the BRWs from raising broader concerns about the additional sub-factors they now present in this application. They say that had Officer Lurie provided them the information they were seeking at the time (i.e. documentation related to all the non-union jobs evaluated under the Plan, or at least related to non-union jobs in similar SVGs as the BRWs) they would have been in a position to broaden their attack on the Plan by reference to other job classes and other sub-factors in the gender neutral comparison system. Furthermore, the BRWs submit that York is unduly narrowing the nature of the issues they referred to Officer Lurie. The issue before Officer Lurie was the proper evaluation of the BRW job class, and that is the same issue before the Tribunal.

23We do not agree with the submission of the BRWs that the lack of information can be blamed for the BRWs not raising until now the ratings under the three additional sub-factors. The logic of that submission is faulty. The BRWs knew as much about the Plan when they filed their application with the Tribunal as they knew about the Plan when they were before Officer Lurie. Nothing has changed in that regard between then and now, except that now, in their application, the BRWs challenge three additional sub-factors. There is no discernible reason, therefore, why they are able to challenge a total of seven sub-factors in this application but were unable to do so at Review Services.

24We also do not agree with the BRWs submission that York is being too narrowly technical in its position regarding the Tribunal’s jurisdiction. The fact is, had the BRWs raised their concerns about the three additional sub-factors at Review Services, the Review Officer may well have made determinations that differ from those she actually reached, perhaps even to the satisfaction of both the BRWs and York. The point is, that opportunity was available to, but not taken by, the BRWs at Review Services, and it cannot be said therefore that the Review Services process was exhausted: see Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50, ¶ 9. Accordingly, the proper issue before the Tribunal in the BRW application concerns the ratings of the four sub-factors that were in issue before Review Services, and not the three additional sub-factors citied by the BRWs following the issue of the Order. (Nothing in this decision, however, restricts the BRWs from referring their challenge to the three additional sub-factors to Review Services.) Nor do we find valid York’s contention that the BRWs should not be permitted to draw comparisons with positions in SVG 8 and SVG 9, whereas at Review Services they only sought a rating to bring them within SVG 7. The real issue at Review Services was whether, taking into account the four impugned sub-factors, an accurate or reasonable BRW rating should place them in a higher SVG. That too is the issue before the Tribunal.

25Having said that, we agree with the BRWs’ contention (and, for that matter, the corresponding contention of the PAs) that they are disadvantaged in these proceedings without the information they ask be produced to them by York. At Review Services, both the BRWs and the PAs respectively made requests of Officer Lurie to provide them with a comprehensive (though not identical) set of documents. Apparently, the BRWs were provided a copy of the GNCS used in the evaluation of the non-union jobs, and copies of the completed job information questionnaire and the rating results for the BRW job class, the Behavioural Resource Specialist (a female job class in SVG 7, which the BRWs believed is comparable to their job class) and the male comparator in SVG 6, Network Administrator. However, the BRWs asked to see all documentation pertaining to all the job classes in SVG 6 and 7. York resisted that request as overly broad. Although it is not clear from Officer Lurie’s Order, she did not provide, or order York to provide, the documents beyond those described above.

26At this juncture, the BRWs have refined their production request to ten job classes covered by the Plan. They submit that the information concerning these job classes are arguably relevant. Three of the ten job classes for which documentation is sought are the male comparators: Network Administrator³ (SVG 6); Controller of the Environment (SVG 7); and Assistant Manager of Environment Services and Office Services (SVG 8). The other seven job classes allegedly share in common certain aspects, characteristics, duties or responsibilities with the BRWs.

• Communicative Disorders Assistant and Orientation and Mobility Specialist (both in SVG 6);
• Community Outreach Liaison (SVG 7); and
• Occupational Therapist, Psychological Associate, Speech Language Pathologist and Computer Assistive Technologist (all in SVG 8).

27In our view, the BRWs are entitled to the information they seek from York. It is arguably relevant to the BRWs’ challenge to the evaluation and rating of their job class.

28The PAs request for documentation unfolded somewhat differently. They initially requested documents disclosing the weighting of the sub-factors surrounding the PA job class as well as the job information questionnaires and evaluation documents for all job classes in SVG 8, 9 and 10. The Review Officer provided them with a copy of the GNCS (on condition that it be returned to the Review Officer), the job information questionnaire for their job class, the original and subsequently amended ratings of the PA job class, and the ratings of the male comparator in SVG 9, SAP Programmer Analyst, plus some other materials not directly related to the development of the Plan.⁴ Subsequently, through their counsel, they requested from the Review Officer an order requiring York to produce:

(i) documents outlining the job evaluation and scoring for all non-union jobs covered by the Plan (and used for comparator purposes) including but not limited to job description and job evaluation questionnaires;

(ii) an outline of all point bands decided upon by York and any supporting documentation justifying the widths of each SVG;

(iii) any and all documentation outlining the weighting of each factor/subfactor in the evaluation of each job class covered by the Plan;

(iv) all documents surrounding the evaluation of the male job classes of Manager, Health and Safety and SAP Programmer Analyst, and the female job class of Psychologist; and

(v) a copy of the McDowall Universal Job Evaluation System job evaluation tool.

29Counsel for the PAs explained to the Review Officer that, without the requested information, they were not in a position to fully participate in the complaint process and present their case.

30Review Officer Lurie declined to provide the information sought by counsel for the PAs on the basis that it was not arguably relevant. Furthermore, the Review Officer observed that, in the event of an application to the Tribunal, it would be up to the Tribunal to determine which documents were arguably relevant.

31The PAs take the position that, to the extent their application to the Tribunal lacks particularity, that is due to the resistance of York (and the Review Officer) to provide the information they seek. They undertake to provide further particulars should the Tribunal agree that they are entitled to the documentation.

32For its part, York contends that the PAs have been provided all relevant information, and that its current request for disclosure (of information related to over 190 job classes) is overly broad.

33In our view, the PAs original request for documentation related to all the job classes in SVG 8, 9 and 10 was reasonable and not overly broad. The Plan is based on job-to-job comparisons. The PAs, who were ultimately placed in SVG 9, assert that their job class, compared with other job classes, has been unreasonably undervalued. They have received some information in that regard, but only with respect to one or two other job classes. They are entitled to test the assertion that their job class was unreasonably rated by looking at the job content of a suitable array of other job classes, whether they be male or female job classes, and the ratings that those other job classes received under the Plan. For example, throughout the Review Services process, the PAs insisted that their job class compared favourably to another female job class (Psychologist) in SVG 10. If that were proven to be the case, or if the PAs could show inconsistencies between the ratings they received and those of other higher-rated job classes, it is at least arguable that the lower evaluation of the PAs was unreasonable. That, in turn, could lead to a conclusion that the PAs should have drawn the same or roughly approximate rating scores achieved by one or more of the higher rated job classes. In which case the PAs would have an arguable case that their job class should be compared to a different male job class comparator.

34At least one of the submissions of York implicitly supports such an analysis. York contends, rightly, that “[t]he Act requires an employer to examine all jobs in its establishment and measure them relative to one another.” The PAs have very little information to be able to assess whether York did reasonably or accurately examine all the non-union jobs in its establishment, including the PA job class, and reasonably or accurately measured them relative to one another. That is because, in the development of non-union pay equity plans, employers are not statutorily required to permit non-union employees to provide input into the pay equity plan that applies to them. Many employers (York included) do permit such participation, but usually on a limited basis, and usually within the parameters of the job information gathering process. Thus, though a posted pay equity plan may otherwise entirely comply with the Act, it is possible that non-union employees looking at that posted plan will not be able to glean much from it other than the factors (but not necessarily the weightings, if any, of those factors) upon which all the jobs were rated, the job classes into which their positions fall, the gender of the job classes, the male job class comparator (if any, or in the alternative, the proportional value) to which the female job classes compare, the job rate of the male comparator and the amount of any required pay equity adjustment. That is essentially the information that was conveyed to the non-union employees in this case. They would not be privy, say, to how job classes compared to one another in terms of each individual sub-factor, such as the mental effort and impact sub-factor. Or how the SVGs were established. The Plan does not disclose those details, and from what we can tell, that kind of information was not generally disclosed to York’s employees. Moreover, while York did provide some information to the PAs and the BRWs during the Review Services process, it resisted their attempts to be provided further information about the Plan.

35Unionized employees are in a different situation. They have a bargaining agent acting on their behalf in the negotiation of pay equity plans. More often than not, the bargaining agent actively participates in the development of the pay equity plan, including the evaluations of the job classes that fall within the bargaining unit. There is a much greater opportunity for the bargaining unit members to obtain detailed information from the bargaining agent about the way the GNCS works, how the GNCS factors were weighted, how the pay equity plan’s bandings were determined, and so forth. That is because the trade union will normally be privy to the details of the pay equity plan that it is required by law to negotiate with the employer, and because the trade union has a duty to fairly represent all the bargaining unit members. Responding to their concerns about pay equity falls within that duty of fair representation.

36We are satisfied that we should make an order for production in favour of the PAs. We do not see the utility in requiring York to provide the job information requested by counsel for all of the approximately 194 job classes. In our view, what is reasonable in the circumstances is an order requiring York to produce the documents referenced in paragraphs 19 to 24 of the PAs’ submissions of November 19, 2013 for all job classes in SVGs 8, 9, 10 and 11. That should provide the PAs with a sufficient sampling from which to particularize their application.

37We turn finally to Ms. Smith’s application. As noted earlier, the Order issued by Officer Lurie does not cover Ms. Smith’s job class. Nor are we aware of any other Order from a Review Officer that deals with a complaint by Ms. Smith.

38The Act contemplates a certain process by which an application is properly made to the Tribunal. First, a non-union employee may file a notice of objection to a pay equity plan with the Pay Equity Commission under subsection 16(1)(b), which triggers an investigation by a review officer, which in turn will result in a settlement efforts by the review officer or an order. Secondly, an employee may file a complaint with the Pay Equity Commission under subsection 22.1. Then it must be investigated by a review officer (subsection 23(1)) and the review officer may opt not to make an order (subsection 23(2) and (3)) or make an order (section 24). In either case, an employee party affected by a review officer’s decision is entitled to “request a hearing before the Hearings Tribunal” (subsections 23(4) and 24(6) respectively). The way to request a hearing is to file an application with the Tribunal. Subsection 25 of the Act sets out the circumstances in which the Tribunal must hold a hearing. The relevant provisions read:

25. (1) The Hearings Tribunal shall hold a hearing,

(a) if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24 (3);

(b) if a request for a hearing, as described in subsection 23 (4) or 24 (6), is received by the Hearings Tribunal; or

(c) if a review officer refers a matter to the Hearings Tribunal under subsection 24 (5).

39It would appear therefore that the Tribunal has no jurisdiction to deal with her application. It does not appear that Ms. Smith has followed the process by which her application could be said to be properly before the Tribunal. No notice of objection under subsection 16(1) or complaint under subsection 22(1) appears to have been filed by her with the Pay Equity Commission, nor has a Review Officer dealt with her objection or complaint.

40Ms. Smith, however, should be given an opportunity to say why her application to the Tribunal should not be terminated (without prejudice to the filing of a fresh application after she obtains a result through the Review Services process). Those submissions are to be provided to York and to the Tribunal on or before March 10, 2014.

Summary of Findings and Directions

41York’s motion to dismiss the applications filed by the BRWs and the PAs for failure to disclose a prima facie case is dismissed.

42It is unnecessary at this time to consider York’s motion to dismiss Ms. Smith’s application for failure to disclose a prima facie case.

43The BRWs are limited in their application to challenging the sub-factors that they challenged at Review Services.

44York is directed to provide to counsel for the BRWs copies of the documents described in paragraph 26 above, within 20 days of the date of this decision.

45York is directed to provide to counsel for the PAs copies of the documents described in paragraph 36 above, within 20 days of the date of this decision.

46Counsel for the PAs shall have until ten days after receiving the documents ordered produced in the preceding subparagraph to file and deliver any additional particulars that the PAs may wish to rely upon, and York shall have a further ten days after the receipt of any additional particulars to file and deliver its response to the PA’s application inclusive of the additional particulars.

Footnotes

1. 1The Plan consists of 17 “similar value groups” of a total of 194 non-union job classes. Each similar value group (“SVG”) contains job classes that are considered relatively equal in value based upon the application of the McDowall Universal Job Evaluation Plan to job information questionnaires filled out by the job class incumbents. SVG 1 represents the lowest valued group of job classes (of which there were none); SVG 17 is the highest valued level (containing one job class, Director of Education). The BRWs and Ms. Smith were identified as female job classes placed in SVG 6 and compared to the male job class of Network Administrator. As a result of that comparison they were not eligible for a pay equity adjustment. The PAs were initially identified as a neutral job class in SVG 8, but after further review, York changed the PAs to a female job class and agreed that they were entitled to higher point ratings which brought them into SVG 9, where they were compared to the male job class of SAP Programmer Analyst. However, again, that comparison did not entitle the PAs to a pay equity adjustment. Finally, Ms. Smith’s SDO job class was identified as female, and placed in SVG 5, but also was not eligible for a pay equity adjustment based on the comparable male comparator.
2. 2York submits that its objection on delay does not rest entirely on the scope of the retroactive remedy, but on its understanding that the applicants assert that their job changed in 1995 and has remained the same since then. As we understand it, York views this as a failure by the PAs to raise any complaint about York’s obligation to maintain pay equity in respect of the 1991 non-compliant pay equity plan.
3. 3As indicated earlier, the BRWs were provided job documentation and ratings for the Network Administrator, but they were obliged by Officer Lurie to return that information to her after reviewing its contents.
4. 4In correspondence dated November 13, 2012, the Officer states (and counsel for York confirms) that the PAs were also provided a copy of the completed job information questionnaire for the female job class of Psychologist, as well as a list of each weighted factor and sub-factor used in the GNCS. Counsel for the PAs disputes that either document was provided to the PAs.