Sunnycrest Nursing Homes Ltd. and Maclin Developments Ltd. v. Canadian Union of Public Employees and Bev Swanek
0770-04-PE Sunnycrest Nursing Homes Ltd. and Maclin Developments Ltd., Applicants v. Canadian Union of Public Employees and Bev Swanek, Respondents.
BEFORE: Mary Anne McKellar, Acting Chair, Ann Burke and Carol Phillips, Members.
DECISION OF THE TRIBUNAL: February 28, 2014
This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”). It relates to the Order of a Review Officer dated April 19, 2004 (“the Order”). That Order issued as the result of a complaint filed by the respondent, Bev Swanek. She is a former employee of the applicant Maclin Developments Ltd. and, given the position she occupied, would have been represented by the respondent trade union (“CUPE”) had she remained in its employ.
The parties have entered into a written settlement of this matter pursuant to section 25.1 of the Act. They have expressly agreed that the Order should be set aside or revoked. It is not the Tribunal’s practice to issue consent orders varying or revoking orders without being satisfied that there is a factual basis warranting our doing so, and this has been consistently asserted in a number of cases. It is sufficient to refer to the decision in TRW Canada Limited, 1995 CanLII 7213 (ON PEHT):
In a letter dated August 31, 1995, counsel for CAW-Canada and Local 397 confirms that it is seeking leave to withdraw its application and is consenting to the withdrawal of the TRW Canada Limited application and the requested variation in the Review Officer Order.
In Glengarry Industries Limited (1992) 3 P.E.R. 27 at 28, the Tribunal established guidelines with respect to consent orders as follows:
In our view, before the Tribunal can issue what amounts to a consent order, we must have jurisdiction to make the order, and be satisfied that the order sought is within the discretion of the Tribunal to make, in the sense that a contrary result is not dictated by the Act. We must also be satisfied, based on sufficient evidence, that the order would not result in non-compliance with, or a contravention of the Act. We would require an agreed statement of fact, and documentary evidence, if necessary, upon which we can base a decision.
It appears from the materials filed that the order sought would be within our jurisdiction and not in contravention of the statute. However, we note that the Tribunal has declined to issue consent orders where it finds that it does not have sufficient information as to the basis on which the parties reached certain conclusions: de Havilland (1993), 4 P.E.R. 1; Prescott Police Services Board (1993), 4 P.E.R. 14. In the present case, the panel has heard no evidence on the substance of the issues in dispute. We do not find the materials filed in support of the agreed terms of settlement sufficient in themselves to answer all pertinent questions which the Tribunal could reasonably have. It would probably be necessary for the panel to hear evidence to resolve these questions satisfactorily.
Moreover, the need for consent orders incorporating settlement agreements has been affected by 1993 amendments to the Pay Equity Act (R.S.O. 1990, c. P. 7). Pursuant to s. 25.1, settlements in writing of matters pending before the Tribunal are now binding on the parties. Where there is a bargaining unit, such settlements bind the represented employees. If a settlement agreement is not complied with, an application for enforcement may be made to the Tribunal.
In the circumstances, we decline to issue the requested order.
The parties to this application have simply consented to the Order being set aside. They have not provided any evidentiary basis (such as agreed upon facts) as to why the Tribunal should make such direction. Consistent with the approach described in the TRW Canada Limited case, therefore, we decline to issue the consent order. We do note that all of the parties to the settlement here, and all of the employees represented by CUPE, are bound to the terms of settlement as provided in sections 25.1(2) and (3) of the Act. As well, we note that the Pay Equity Office did not make any application under section 24(5) of the Act to enforce the Order.
Dated at Toronto this 28th day of February, 2014.
“Mary Anne McKellar”
Mary Anne McKellar, Acting Chair
“Ann Burke”
Ann Burke, Member
“Carol Phillips”
Carol Phillips, Member