Regional Nursing Services v. Pay Equity Office, 2014 CanLII 23633

Regional Nursing Services v. Pay Equity Office

File No.: 0413-13-PE Date: May 2, 2014

Before: Patrick Kelly, Vice-Chair, Carol Phillips and Carla Zabek, Members.

Decision of the Tribunal

1This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) in which the applicant (or “RNS”) seeks a variance of an Order dated January 8, 2013 (“the Order”).

2By way of a decision dated March 17, 2014, the majority of the Tribunal ordered the applicant to serve the application on certain categories of individuals set out in Appendix A of the Order in accordance with the Tribunal’s Rules of Practice. Schedule A of the Order is a list of all the employees and former employees to whom RNS was directed to pay specified pay equity adjustments.

3On April 9, 2014, counsel for RNS filed submissions in support of a request that the Tribunal relieve against the requirement in Rule 14 of the Tribunal’s Rules of Practice to serve the completed application on the respondent employees. Specifically, the applicant requests that it be permitted to substitute Schedule A of the Order in the package of materials sent to each respondent with a statement of the amount owed to the particular respondent receiving notice of the application.

4The employer’s argument can be summarized as follows. First, there is a privacy issue at stake. Schedule A reveals all the individuals’ full names and the amount that each is entitled to as a pay equity adjustment. This, RNS contends, is personal information. Second, revealing only a small portion of Schedule A to each individual (i.e. her monetary entitlement) does not compromise the individual’s right to natural justice. The ability of each individual to know the applicant’s case and to respond to it is not compromised by the exclusion of Schedule A. And third, the full contents of the Order are not relevant to the issue in dispute, since there is no issue concerning the merits of the Order, only whether or not it should be varied so as to apply only to those employees who RNS has been able to contact in the past.

5We have no difficulty with the second and third components of the applicant’s argument. With respect to the applicant’s claim that there is a privacy interest at stake, it relies upon the Tribunal’s decision in Riverdale Hospital v. C.U.P.E., Local 79, [1990] O.P.E.D. No. 6. That matter involved a request by Riverdale Hospital that the Tribunal revoke an order of the Review Officer to disclose to the trade union with whom it was negotiating a pay equity plan the salary ranges of non-union positions. The Tribunal declined to grant that request (except insofar as the salary range for the Hospital’s Executive Director, which the Tribunal found not to be relevant because the trade union was not claiming that position as a possible male comparator). It found that the information of the non-union salary ranges was relevant and necessary for the union to formulate its bargaining position and to negotiate the male job classes for the pay equity plan. RNS contends that, in so doing, the Tribunal in the Riverdale Hospital decision implicitly recognized a privacy right in respect of economic information identifying individuals because it noted at paragraph 19 of the decision that the scope of the order in question did not include the disclosure of any incumbent’s actual earnings. However, the Tribunal’s observation could also be interpreted simply as a rejection of the Hospital’s submission that the order breached confidentiality. Clearly, the order as written did not do so. In any event, the Tribunal gave no hint what it might have done had the order required disclosure of individuals’ actual earnings. In any event, the case before us does not involve the disclosure of individuals’ salaries or actual earnings. It has to do with dollar amounts found by a Review Officer to be owing to individuals by virtue of their occupying female job classes under a proxy pay equity plan.

6The applicant candidly admits that no legislation appears to apply to the disclosure of an individual’s entitlement to a pay equity adjustment. Nevertheless it characterizes such information as “private”. No authority, other than the Riverdale Hospital decision, is cited in support of that assertion. Nor did the applicant claim any prejudice to itself from the disclosure of the contents of Schedule A to the individuals to whom the applicant must give notice.

7For these reasons, we are not persuaded that we should relieve against Rule 14 and permit the applicant to serve less than a complete copy of the application, inclusive of Schedule A, on the employees covered by the Tribunal’s March 17, 2014 decision.

8The applicant’s request is therefore denied.