Ontario Pay Equity Hearings Tribunal

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: May 1, 2014

1. These are applications under the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”).

2. In our decision dated February 25, 2014 (“the Decision”), we made determinations with respect to several preliminary issues. In regard to the application brought by Francis Smith in Tribunal File No. 0875-13-PE, we wrote:

3. We 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.

4. The 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:

5. (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).

39. It 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.

40. Ms. 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.

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

42. Ms. Smith made timely submissions. In addition, the Pay Equity Office wrote to the Acting Chair on March 5, 2014 with information that related to our comments about Ms. Smith’s application. The upshot is that, contrary to the observations we made in the above excerpt, Ms. Smith indeed filed an objection with Review Services of the Pay Equity Office on or about May 17, 2013, within 30 days of the posting by York Catholic District School Board of a revised non-union pay equity plan pursuant to an Order dated April 8, 2013 by Review Officer Doreen Lurie. Pursuant to subsection 17(1) of the Act, the Pay Equity Office did not investigate the objection, but rather forwarded a copy of Ms. Francis’s objection to the Tribunal in anticipation that the Tribunal would, in accordance with the requirements of subsection 17(1), hear the matter. Unfortunately, this panel of the Tribunal was not aware of any of that information when it rendered the Decision.

43. It would appear, then, that the Francis application is properly before the Board. In its response to the Francis application, York submitted that the non-union pay equity plan is a deemed approved plan. It is difficult to see how that can be the case in light of the interaction between paragraph 3 of subsection 16(4) and subsection 16(5). However, we need not decide that issue now. Subsection 17(1), in conjunction with subsection 16(4)3 of the Act, contemplates that the Tribunal will hear and determine the pay equity plan to which Ms. Smith’s objection applies, even though her objection was filed after the Order of April 8, 2013 (but within the thirty day period following the posting of the amended plan by York).

44. Having arrived at that conclusion, we now must deal with York’s motion that the application ought to be dismissed for failure to disclose a prima facie case. In the Decision, we dismissed prima facie motions by York to defeat the applications in Tribunal Files No. 0641-13-PE and 1794-13-PE, both of which raise similar concerns as in the Francis application regarding the job evaluation ratings of the respective female job class occupied by the applicants. In our view, the reasoning that applied in those matters applies in the Francis application.

45. Accordingly, we decline to dismiss the Francis application on a preliminary basis.

Dated at Toronto this 1st day of May, 2014.

“Patrick Kelly”

Patrick Kelly, Vice-Chair

“Ann Burke”

Ann Burke, Member

“Carol Phillips”

Carol Phillips, Member