Franko v. York Catholic District School Board, 2014 CanLII 50078

Pay Equity Hearings Tribunal

OLRB Case No: 1794-13-PE

Applicant(s): Catherine Franko, Lynne Hoevenaars, Sonja Kohler, Janet Mullally, Michelle Prinzo and Emanuela Ruth Responding Party(ies): York Catholic District School Board

Before: Patrick Kelly, Vice-Chair.

Decision of the Tribunal: August 20, 2014

Decision

1This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7, as amended ("the Act").

2I am issuing this decision pursuant to the authority conferred in subsection 4.2(1) of the Statutory Powers Procedure Act.

3Following a decision by the Tribunal declining the request of the responding party ("the employer") to file its response on or before June 30, 2014 but granting an extension until June 23, 2014 on the agreement of the applicant, the responding party filed its response to the application as well as to further particulars advanced by the applicant as permitted by the Tribunal in its decision dated February 25, 2014. At paragraph 29 of Appendix "A" of the response, the employer requests that the Tribunal strike paragraphs 4, 5 and 6 of the applicant's particulars which the employer contends raise new challenges to the employer's non-union gender neutral comparison system that were not raised at Review Services, and are therefore beyond the jurisdiction of the Tribunal. Furthermore, at paragraph 30 of Appendix "A", the employer states that its response is limited only to the three challenges that it contends were raised by the applicant at Review Services, but that the employer "reserves the right to respond further" if the Tribunal determines it has jurisdiction to deal with the alleged new challenges raised by the applicant.

4The applicants contend that the issue that was before Review Services was the evaluation of their job class, and that they did not limit the issue to any particular job evaluation factors. Furthermore, the applicants say that the employer's characterization of the issue for determination is overly narrow and would circumvent the production order granted by the Tribunal to the applicants in its decision dated February 25, 2014, which order enabled the applicants to make further particulars, including those impugned now by the employer. The applicants contend that therefore their particulars at paragraphs 4, 5 and 6 ought not to be struck, and further that it is not appropriate or within the Rules of Practice for the employer to make only a partial response to the particulars. Accordingly, the applicants ask the Tribunal to direct the employer to file forthwith a response to those particulars.

5The applicants also seek an order from the Tribunal directing the employer to produce copies of certain documents referred to in the employer's response.

6A case management hearing in this matter has been scheduled for October 6, 2014. In my view, it is appropriate for that panel of the Tribunal to determine whether or not to strike paragraphs 4, 5 and 6. This may require the hearing of evidence concerning what was or was not before Review Services, and the parties ought to come prepared to the case management hearing to call that evidence (as well as make oral representations) if the hearing panel so directs.

7In the meantime, and by virtue of the requirements set out in Rules 17 and 18 of the Tribunal's Rules of Practice, the employer must make full response to the applicant's particulars at paragraphs 4, 5 and 6. It is directed to do so on or before August 29, 2014. The applicant shall have five days following the date the employer serves its response to file and serve the applicant's reply.

8The applicant seeks an order from the Tribunal for production of certain documents from the employer. As counsel for the employer points out, the Tribunal's Rules of Practice set out the timeframes for the exchange of documents upon which the parties intend to rely prior to the commencement of the hearing, which in this case is October 6, 2014. Those timeframes have not yet expired. It may well be that the applicant's request for production will be satisfied pursuant to that exchange of documents. If not, the applicant may renew its request to the Tribunal, either before the case management hearing if necessary, or in the course of the case management hearing.