Regional Nursing Services v. Magno, 2015 CanLII 12090

Pay Equity Hearings Tribunal

PEHT Case No: 0413-13-PE

Regional Nursing Services, Applicant v Helen Magno, Richard Burke, David Leung, Pan YuLing, Crystal McLean, Sindy Kwong, Cecilia Ng, Omotunde Okonkwo, and Jacqueline Rodney, Respondents¹

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

APPEARANCES: Angela E. Rae, Brian P. MacDonald, Angela Westheuser and Kalin McDonald appearing for the applicant; no one appearing for the respondents.

DECISION OF THE TRIBUNAL: March 6, 2015

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”) issued by Review Officer Tiziano Isgro (“the Review Officer” or “Ms. Isgro”).

2The Order contained a Schedule A list of employees and former employees, totalling 767 individuals (two of whose names were duplicated on the list), to whom RNS was directed to pay specified pay equity adjustments. In its application, RNS did not dispute its pay equity liability in respect of the individuals listed on Schedule A of the Order, but took the position that persons for whom RNS had no current address, persons with whom RNS had reached pay equity settlements, and persons who had not responded to communications about their pay equity adjustments be removed from Schedule A, as otherwise it would be impossible to comply with the Order. RNS requested that, as a preliminary matter, the Tribunal rule on the applicant’s request to be exempted from having to serve the application on the categories of individuals described in the preceding sentence. Furthermore, RNS took the position that, in the event the Tribunal required RNS to serve those categories of individuals with the application, any individual who failed to respond to the application should be removed from Schedule A.

3A hearing into the applicant’s preliminary motion was held on January 21, 2014. In a decision dated March 17, 2014, a majority of the panel determined that the applicant was not required to deliver the application to the individuals on Schedule A with whom it had entered into settlements or to whom it had paid the amounts specified in Schedule A of the Order. (The decision of Member Carol Phillips dissented from the majority’s decision to exempt the applicant from delivery of the application to the individuals who had entered into settlements.) However, the hearing panel unanimously agreed that RNS should not be relieved under the Tribunal’s Rules of Practice from delivering the application to all other individuals named in Schedule A, and ordered the applicant to effect delivery on them. The decision did not deal with the merits of the application.

4In a decision dated May 2, 2014, the same panel of the Tribunal declined the applicant’s request for permission 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.

5On June 2, 2014, RNS informed the Tribunal that it had served the application in compliance with the Tribunal’s decision of March 17, 2014, with the exception of two individuals on Schedule A, for reasons that need not be repeated here. Suffice it to say that, in a decision dated June 9, 2014, the panel excused the applicant from having to serve those individuals with notice of the application.

6Following service of the application by RNS, the Tribunal received responses (or documents that the Tribunal treated as responses) from a number of individuals. Several of those individuals later informed the Tribunal that they had entered into settlements with the applicant, and wished to be, and were, removed as parties.

7On September 22, 2014, the applicant requested that a hearing date be established for the purpose of proceeding to the merits of the application.

8On October 3, 2014 the Tribunal issued a Notice of Hearing to all the parties of record, and their counsel if any, notifying them of a hearing to take place in Toronto on February 25, 2015.

9When the hearing on February 25, 2015 commenced, only the applicant was in attendance. Accordingly, the applicant’s request for a variance of the Order was unopposed.

10The information before the Tribunal is as follows. All the individuals on Schedule A of the Order, including those persons who filed responses to the application, have either:

• reached settlements with RNS regarding their pay equity entitlements under the Order;

• received from RNS their full pay equity entitlements under the Order; or

• not responded to several mailings and advertisements by the applicant requesting that they contact RNS regarding their pay equity entitlements².

11In its decision dated March 17, 2014, the majority set out the reasons advanced by RNS for its request that the Order be varied, as follows:

17. …the applicant stresses the importance of finality in matters of pay equity. It says it cannot achieve that finality if the obligation under the Order to pay the pay equity adjustments is made impossible because of circumstances beyond the applicant’s control (i.e. the lack of information concerning the whereabouts of individuals to whom payment is owed and to whom notice of the application would normally be given). That, in turn, gives rise to practical problems for the applicant, including the costs of endeavouring to comply with the Order, and the business ramifications arising from having on its books an ongoing, indefinite, impossible-to-resolve liability.

18. In support of its submissions, RNS relied upon: Riverdale Hospital, [1990] O.P.E.D. No. 10; Greater Essex County District School Board, [2001] O.O.H.S.A.D. No. 107; and Queensway Nursing Home, [2010] O.P.E.D. No. 34 (request for reconsideration dismissed in 2010 CanLII 56873 (ON PEHT).

12Based upon the information before the Tribunal, we find that the applicant has taken all reasonable steps to comply with the Order, and has effectively done so. In our view, having made these findings, there is no compelling purpose to vary the Order, or to revoke it in whole or in part. That is consistent with the approach taken by the Tribunal in Scarborough No. 2 (1994), 5 P.E.R. 87 and in Valley East (1994), 5 P.E.R. 91.

13The application is terminated.

Footnotes

1. 1The title of proceeding is amended to reflect the removal of Agnes Yuen-Mui Ng as a respondent pursuant to her written request dated December 18, 2014.
2. 2This category includes both persons who may have received the applicant’s written letters and/or seen the advertisements placed by the applicant but who did not contact RNS; and persons to whom RNS sent letters to their last known address, but whose letters were returned undelivered.