Community Living Guelph Wellington v Canadian Union of Public Employees, Local 4392, 2015 CanLII 16351

Pay Equity Hearings Tribunal

PEHT Case No: 1069-14-PE Pay Equity Office, Applicant v Community Living Guelph Wellington, Canadian Union of Public Employees Local 4392, Respondents

PEHT Case No: 2277-14-PE Community Living Guelph Wellington, Applicant v Canadian Union of Public Employees, Local 4392, Respondent

Before: Patrick Kelly, Vice-Chair, Ann Burke and Carol Phillips, Members

Decision of the Tribunal: March 16, 2015

Decision

1Case No. 1069-14-PE is a referral to the Tribunal for enforcement of a Review Officer’s Order issued under the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”).

2Case No. 2277-14-PE is an application objecting to the same Order.

3By way of a decision dated January 5, 2015 of Chair McKellar (“the McKellar decision”), the Tribunal, as is its usual practice, held the application in Case No. 1069-14-PE in abeyance pending the outcome in Case No. 2277-14-PE. This decision therefore deals only with Case No. 2277-14-PE, which I shall refer to as “the application”.

4The application concerns the issue of the applicant’s ability to satisfy an Order dated March 5, 2014 (“the Order”) of Review Officer Al Coulen (“the Review Officer”). The applicant posted a proxy comparison pay equity plan on July 11, 1994, and made good on the pay equity adjustments required under the pay equity plan until 2010, at which point the applicant ceased to make any of the remaining adjustments for 2010 through 2014 due to lack of funding from the Ministry of Community and Social Services (“the Ministry”) Subsequently, the applicant received some further pay equity funding from the Ministry, and made further payments under the pay equity plan, but not all of the required payments.

5The applicant does not challenge the substance of the Order. It says it wants to comply fully with the Order, but simply does not have the means to do so unless and until the Ministry comes through with further funding. The applicant says it cannot comply with both the Order and its Service Agreement with the Ministry under which the applicant has promised to provide a certain level of service. Therefore, the applicant requests that the Tribunal stay the enforcement of the Order until Ministry funding is in place.

6The McKellar decision directed the filing and delivery of submissions concerning the motions of the respondent trade union (“the union”) to have the Tribunal:

• dismiss the application on a prima facie basis, and
• determine that the “interested parties” that the applicant, Community Living Guelph Wellington, has identified in the application (and who appear on Appendix A to the Registrar’s cover letter for this decision) have no legal interest at all in this proceeding and should be denied intervenor status and removed from the title of the proceeding.

This decision deals with those two issues and the submissions received in relation thereto.

7The Tribunal received submissions from the applicant, the union, Community Living Tillsonburg (which also filed a response to the application on November 14, 2014), Community Living Oshawa Clarington (which to date has not filed a response to the application) and Community Living Glengarry Inc. (which, after having filed a response on November 15, 2014 to the application, indicated in correspondence dated January 19, 2015 that it did not intend to participate in the proceeding and requested that it be treated as a non-party).

8By way of background, in addition to the response to the application filed by the union, the Tribunal received 22 responses in November 2014 from among the 63 “interested parties” named by the applicant in its application.¹ All but one of the 22 responses simply purported to adopt the facts set out in the application and requested that the Tribunal rule in favour of, and grant the remedies sought by, the applicant.² And as we have indicated, of those 22 entities who filed responses, only Community Living Glengarry Inc. and Community Living Tillsonburg filed any submissions concerning their status as parties in response to the McKellar decision. Furthermore, Community Living Glengarry Inc. no longer wishes to participate in the application. Community Living Tillsonburg in its submissions simply adopted the submissions on standing advanced by the applicant.

9Subsection 32(1) of the Act reads:

Where a hearing is held before the Hearings Tribunal or where a review officer investigates for the purposes of effecting a settlement of an objection or complaint, the parties to the proceeding are,

(a) the employer;

(b) the objector or complainant;

(c) the bargaining agent (if the pay equity plan relates to a bargaining unit) or the employees to whom the plan relates (if the plan does not relate to a bargaining unit); and

(d) any other persons entitled by law to be parties.

10Rules 32 and 33 of the Tribunal’s Rules of Practice read:

32. Any person may, with leave of the Tribunal, intervene in all or part of the proceeding on such conditions as the Tribunal considers appropriate.

33. A Notice of Motion (Form 11) seeking leave to intervene including a description of the grounds on which intervention is sought, the role the intervener proposes to play in the proceeding, Affidavits (if any) and any legal decisions relied upon must be served on all parties to the Application and filed with a Statement of Service (Form 3) with the Tribunal as soon as possible after the intervener becomes aware of the Application. Four (4) copies of the Motion and supporting materials, excluding the legal decisions, must be filed, with Statements of Service (Form 3), with the Tribunal. Where the Motion is filed by facsimile transmission no additional copies need be filed. Three (3) copies of the legal decisions must be filed with the Tribunal. Decisions reported in the Pay Equity Reports should be identified but need not be filed.

11Community Living Tillsonburg (with the support of the applicant) submits that it is a proper party in this matter. The applicant says the same is true of all the other named interested parties, that they are in fact “persons entitled by law to be parties”. Community Living Oshawa Clarington does not say exactly whether it should be treated as a party pursuant to subsection 32(1)(d) of the Act or as an intervener under Rule 32 of the Rules of Practice, but it claims it has an interest in the application by virtue of its assertion that the current and future sustainability of provincially funded organizations would be jeopardised if they were required to make pay equity adjustments without provincial funding.

12The test for party status – that is, the status of a person entitled by law to be a party – is whether or not the entity or individual has a direct and substantial interest in the outcome: Wentworth County Board of Education (1990) 1 P.E.R. 132. In that matter, the Tribunal was asked to determine whether the Ontario Secondary School Teachers' Federation (OSSTF) was a party to a proceeding involving the Wentworth County Board of Education and the Wentworth Women Teacher's Association, an organization representing elementary teachers. OSSTF argued that it should be allowed to participate on the basis that the decision of the Tribunal could have an impact on job class issues for secondary teachers. The Tribunal held that OSSTF was not entitled by law to be a party. The then Chair of the Tribunal explained at paragraph 28:

It is the Tribunal’s decision that OSSTF is not a party to these proceedings. The determination of job class for elementary classroom teachers is the issue in this case. OSSTF is not bound by this decision... Therefore, OSSTF does not have a direct and substantial interest in the outcome of this case.

13Community Living Tillsonburg says that its direct and substantial interest in the application lies in the fact that:

• it has the same rights and obligations under the Act as does the applicant;
• it provides services which, like the applicant, are controlled by the Province;
• it, like the applicant, is limited in its financial resources which are largely funded by the Province; and
• it anticipates receiving orders from a Review Officer.

The applicant relies on the same four factors to support its position that Community Living Tillsonburg and all the other named interested parties have a direct and substantial interest in the outcome of the application.

14With respect, the factors cited by Community Living Tillsonburg and the applicant do not make out a case that the named interested parties are entitled by law to be parties in this application. The best that can be said is that these appear generally to have a number of things in common. They arguably share a similar interest generally in pay equity because they appear to be organizations that provide similar services to similar clients under similar conditions that are prescribed by their funder in common. But as the Tribunal explained at paragraph 24 of Royal Crest Lifecare Group No. 4 (2001) 12. P.E.R. 38, “an interest in pay equity generally does not amount to a direct and substantial interest in the outcome of a particular case”. The fact of the matter is that if the Tribunal denies the named interested parties status as parties under subsection 32(1)(d) of the Act, whatever the outcome in this matter, it will not bind anyone but the applicant and the union. Nor is the Tribunal bound to follow any final decision in this application in another subsequent proceeding that may involve one or more of the named interested parties. Accordingly, we find that the named interested parties are not persons entitled by law to be parties in this application.

15We turn next to the question whether the Tribunal should permit the named interested parties to participate in this matter as interveners pursuant to Rule 32. The applicant (supported by Community Living Tillsonburg) states as follows in its submissions of January 19, 2015:

16. The Applicant submits that,

(a) the identical nature and scope of the concerns of the Applicant and the Interested Parties;

(b) the Inefficiencies of having each organization file its own application;

(c) the lack of prejudice to CUPE; and

(d) the narrow issue (whether payment of pay equity amounts owing can be delayed until such time as funding is provided by Ontario);

all indicate that the Interested Parties should, at a minimum, be granted status as non-party Intervenors in the proceeding.

17. The Applicant acknowledges that the participation of multiple parties could in some circumstances delay the determination of the dispute or add to the cost of proceedings. However, these concerns may be addressed via direction from the Tribunal with respect to procedural matters.

18. The Interested Parties have information and evidence which will assist the Tribunal in considering the issues raised by the Application.

19. With respect to the application of Rules 32-36 of the Tribunal's Rules of Practice (“the Rules”), the Applicant submits that:

(a) Rule 1 permits the Tribunal to relieve against the strict application of the Rules;

(b) to the extent that the Tribunal would be assisted by specific information about the Interested Parties' circumstances, it may request submissions from them in that regard; and

(c) the Tribunal may provide directions with respect to the scope of participation by the Interested Parties:

all of which would provide a more efficient and effective use of the parties' (including the Tribunal's) resources than having each Interested Party file an Individual Notice of Motion as contemplated by the Rules.

16As pointed out by the union, the vast majority of the organizations named by the applicant as interested parties have not bothered to file a response to the application or file submissions in response to the McKellar decision. Moreover, among those organizations named by the applicant as interested parties who have filed anything in respect of this application, none of them has (except as outlined previously in this decision) described their organizations, their compliance or lack thereof with the Act, any Orders that may have been issued against them, the specific grounds on which each of them base their claim to intervene, the proposed scope of their intervention in the application, or the role they intend to play in the proceeding. With the exception of the The Participation House Project (which seeks a remedy the Tribunal has no jurisdiction to grant), those entities that filed a response to the application did nothing more than adopt the facts and representations made by the applicant in connection with an Order that was made only against the applicant. That constitutes a failure to advance their own legal interest or to show how their legal interest is served by participation in this proceeding.

17While we do not mean to diminish the problems that non-profit organizations such as these may be experiencing coming to terms with their obligations under the Act (and to be clear, none of the named interested parties expressly claimed that similar Orders have been made against them, and that they cannot afford to satisfy those Orders), their purported adoption of the content of the application amounts to little more than cheerleading for the position of the applicant. The named interested parties have not established their own factual basis for intervening in this matter, which leads us to the conclusion that they have nothing new or different to add beyond what the applicant wishes to present.

18In Haldimand-Norfolk (No. 5) (1990), 1 P.E.R. 77 the Tribunal dealt with an application for leave to intervene by Mercer, a human resources consulting company. The Tribunal held as follows:

19. … [T]o grant Mercer party intervenor status would unnecessarily add to the length and cost of the proceedings. The Tribunal must balance this against the need to be fair, accessible and efficient in our adjudication of disputes. We can find no reason to lengthen or complicate the process unnecessarily when the Mercer company is not subject to any result of the hearing… There is prejudice to the Applicant if the Employer is allowed to buttress the defence of its proposals by status being granted to Mercer as an additional party intervenor.

20. In balancing the criteria for intervention, the Tribunal finds that the nature and scope of the proposed intervenor’s concern in these proceedings is not one which involves direct and legal interests … Mercer’s concerns are of a commercial nature and are incidental to the issues before us… In summarizing our application of the other criteria, the Tribunal finds that there would be a prejudice to the parties in allowing Mercer's participation; the proceedings would be unnecessarily lengthened and more costly and would delay an expeditious determination of the dispute… Having considered the criteria, on balance, the Tribunal finds that even if it does have authority to add party intervenors, it would not allow the intervention application in this case.

19The Tribunal, also refused a request brought by individual teachers for leave to intervene in York Region Board of Education (1993), 4 P.E.R. 51. In that case, the Tribunal explained at paragraph 26:

26. …Non-party intervenor status is granted at the discretion of the Tribunal where it feels that the participation of the non-party intervenor will be of assistance to the Tribunal in reaching its decision. We do not feel that the participation of the Individual Teachers will be of assistance to us. The Individual Teachers do not offer the Tribunal a distinct point of view or expert knowledge on the issues before us. They do not represent any general public interest, or indeed any interest that cannot adequately be presented by someone else. In fact, their position – opposition to the Review Officer's finding that the elementary classroom teachers in the Board's employ comprise seven job classes – will be presented by someone else, the Board.

20Similar observations apply with respect to the proposed intervention of the named interest parties in the present case. They too do not claim to bring a distinct point of view or expert knowledge.

21The named responding parties did not advance any facts that would suggest, as the applicant submits, that the nature and scope of their concerns are “identical” to those of the applicant. To the extent, however, that the nature and scope of their concerns are identical to those of the applicant, there is no need for them to participate as that perspective is already represented by the applicant in this proceeding.

22To the extent that the organizations named by the applicant as interested parties have received or may receive outstanding orders from a Review Officer, they can file their own application with the Tribunal. They have other means, apart from intervening in this matter, to raise their concerns. The applicant suggests there is something inefficient in having each organization file its own application. The fact of the matter is that any organization served with an order by a Review Officer is entitled to file its own application. There is no specific information before us to suggest that a large number of orders have been issued against the named interested parties, or that applications have been, or will be filed, by those entities. Accordingly, the submission of the applicant is speculative. In any event, the fact that other applications may be filed with the Tribunal has no substantial impact upon the efficiency of the current proceeding.

23The (unspecified) involvement of dozens of entities either as non-party interveners would unnecessarily complicate and delay the proceeding. Moreover, if the named interested parties were permitted to participate, surely any trade unions with whom they have a duty to bargain pay equity also would be entitled to participate, thus complicating the matter even further.

24In conclusion, the named interested parties have failed to establish that they have a direct and substantial interest in the outcome of this proceeding, and we therefore find they are not parties within the meaning of subsection 32(1) of the Act. Moreover, the named interested parties have advanced no grounds independent from those of the applicant that would justify the exercise of the Tribunal’s discretion under Rule 32 to permit their inclusion in this matter as interveners. We therefore decline to grant them standing to participate in the application.

25We turn next to the union’s prima facie motion.

26To make out a prima facie case, the applicant must allege facts, which, if proven, would constitute a basis in law for revoking the Review Officer's Order. In numerous cases, the Tribunal has held that an application will be dismissed if the pleadings disclose no prima facie case: See Peterborough (1991), 2 P.E.R. 86; Parry Sound District General Hospital (No.2,) (1996), 7 P.E.R. 73; Villa Colombo (1997), 8 P.E.R. 133.

27The specific test for a prima facie case has been set out in Peterborough Firefighters, supra at paragraphs 6 and 7:

6. On a motion for dismissal on the basis of failure to make out a prima facie case, a tribunal must decide whether the applicant has made out a case on the face of the written material filed as the application. For this purpose, the applicant is permitted to make its best case by treating everything it has alleged as if it were true. A failure to establish a prima facie case means that even if the applicant could prove all its allegations, the tribunal could do nothing for it because the facts alleged do not constitute a violation of the relevant statute. If the applicant's best case does not provide the basis for a remedy, the application is dismissed, if it would provide a basis for a remedy, however, the assumption of truth is forgotten: the case proceeds to permit the applicant to prove its allegations and the respondent to respond to them.

7. An applicant must make out a set of circumstances which, if proved, the Tribunal can rectify in the manner requested by the applicant. There are times when the applicant may make out a case which could be rectified by the Tribunal, but does not provide sufficient information for the respondent to answer the case fully; then the Tribunal might order the applicant to provide further particulars about the circumstances underlying its claim. But such cases must be distinguished from those in which it is clear on the material filed by the Applicant that the Tribunal could not rectify the circumstances set out by the Applicant in the manner requested; then there is no point in proceeding: hence the authority to dismiss for failure to establish a prima facie case.

28In the present case, the sole basis for the applicant’s request for an order staying the enforcement of the Orders, is its alleged inability to pay due to a lack of funding from the Ontario government. However, the Tribunal has said on prior occasions that lack of funding is not a defense to an employer's obligation to comply with a pay equity plan or the Act and accordingly the Tribunal lacks the jurisdiction to issue the requested order.

29In Kensington Village (2000 -01), 11 P.E.R. 1 the Tribunal held that lack of funding is not a defense to an employer's obligation to comply with a pay equity plan or the Act. On this issue, the Tribunal explained at paragraphs 20-24:

20. … [T]here is no provision in the legislation which addresses issues of funding or financial hardship on the part of an employer with obligations under a pay equity plan.

21. It would have been a simple matter for the legislature to have included language in the statute to explicitly allow for pay equity obligations to be deferred in cases where payment would cause financial hardship to the employer. More specifically, if the legislature had intended to provide that organizations in the broader public sector would not be obligated to make pay equity adjustments unless and until they received annual dedicated funding, it could have included such a provision in Part III.2 of the Act, which deals with the Proxy Method of Comparison.

22. Instead, the legislation sets out a scheme of mandatory obligations and mandatory timeframes for the payment of adjustments…

23. We conclude that, even if the pay equity plan governing these parties does on its face allow payment of adjustments to be deferred until dedicated government funding is received, this language in the plan cannot be relied upon by Kensington Village as a basis for not meeting its statutory obligation to pay out annual adjustments until such time as pay equity is achieved.

24. Accordingly, we dismiss the application on the basis that it fails to state a prima facie case for revoking the Review Officer's Order.

30In Regesh Family and Child Services (2001 - 02), 12 P.E.R. 94 the applicant in that case again attempted to argue that lack of funding is a defense to an employer's obligation to comply with a pay equity plan or the Act. Relying on Kensington Village, supra, the Tribunal held at paragraphs 12-13 that “the Pay Equity Act had no provisions which permit an employer to avoid or delay the liability to make pay equity adjustments on the basis that it did not have the ability to pay” and that “even if the Tribunal were satisfied that the Applicant did not have the ability to pay and was not funded to meet its pay equity obligations, the Tribunal would not be able to issue the remedy requested”.

31More recently, in Touchstone Youth Centre v George, 2012 CanLII 35710 (ON PEHT), the Tribunal again confirmed at paragraph 13 that “lack of funding is not a defense to an employer's obligation to comply with a pay equity plan or the Act.”

32In response, in its written submissions the applicant relies upon the Board's discretionary power in subsection 25(2)(g) of the Act. Subsection 25(2) reads:

The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,

(a) where it finds that an employer or a bargaining agent has failed to comply with Part II or III.1, may order that a review officer prepare a pay equity plan for the employer’s establishment and that the employer and the bargaining agent, if any, or either of them, pay all of the costs of preparing the plan;

(b) where it finds that an employer has contravened subsection 9 (2) by dismissing, suspending or otherwise penalizing an employee, may order the employer to reinstate the employee, restore the employee’s compensation to the same level as before the contravention and pay the employee the amount of all compensation lost because of the contravention;

(c) where it finds that an employer has contravened subsection 9 (1) by reducing compensation, or has failed to make an adjustment in accordance with subsection 21.2 (2), may order the employer to adjust the compensation of all employees affected to the rate to which they would have been entitled but for the reduction in compensation and to pay compensation equal to the amount lost because of the reduction;

(d) may confirm, vary or revoke orders of review officers;

(e) may, for the female job class that is the subject of the complaint or reference, order adjustments in compensation in order to achieve pay equity, where the Hearings Tribunal finds that there has been a contravention of subsection 7 (1);

(e.1) may determine whether a sale of a business has occurred;

(f) may order that the pay equity plan be revised in such manner as the Hearings Tribunal considers appropriate, where it finds that the plan is not appropriate for the female job class that is the subject of the complaint or reference because there has been a change of circumstances in the establishment; and

(g) may order a party to a proceeding to take such action or refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances.

33Subsection 25(2)(g) does not grant the Tribunal the discretion to refuse to apply the Act or to make an order contrary to the requirements of the Act. The general remedial power in this section only provides the Tribunal with the discretion to make orders consistent with the legislative scheme.

34In Dufferin-Peel (No. 3) (1998-99) P.E.R. 6, relying on subsection 25(2)(g), the employee parties sought an order from the Tribunal requiring the employer to allow the employees time off work without loss of pay to participate in the hearing. The Tribunal however refused to make the order. It explained at paragraph 12:

In the absence of clear language permitting the Tribunal to make the order requested by the Employees we must refuse to do so. The Legislature, in its discretion, created a statutory scheme in which the Employees are a necessary party to the Board's application to revoke the review officers [sic] order. In so doing it chose not to provide for the applicant to remunerate the responding employees.

35The remedy requested by the applicant in this case - that the Tribunal stay the enforcement of the Order for an indeterminate period of time – is not consistent with the legislative scheme of the Act. In fact, it is contrary to the Act in that it would exempt the applicant from having to comply with its statutory obligations at least temporarily, and perhaps permanently if the applicant ultimately fails to gain the funding it seeks from the Ministry. Even were we persuaded that the applicant does not have the financial means to comply with its pay equity plan, this is not a remedy we would be prepared to grant.

36In our view, the application as pleaded has no reasonable prospect to obtain the remedy requested. The Tribunal is unable to rectify the circumstances faced by the applicant. There is therefore no point in proceeding further with this matter.

37For these reasons, the union’s motion is granted, and the application is dismissed.

Footnotes

1. 1In addition to the 22 responses, the Board received a Statement of Service but no response from Lambton County Development Services and Norfolk Association for Community Living,
2. 2The response filed by The Participation House Project also purported to adopt the facts asserted by the applicant and requested that the Tribunal rule in favour of the applicant; but in addition, The Participation House Project requested that the Government of Ontario be ordered to fund pay equity retroactive to April 1, 2010. The Government of Ontario is not a party in this matter, and thus the Tribunal has no jurisdiction to make such an order.