PAY EQUITY HEARINGS TRIBUNAL
PEHT Case No: 1235-15-PE
Community Living North Perth, Applicant v Ontario Public Service Employees Union, Local 226, Respondent
PEHT Case No: 1236-15-PE
Community Living North Perth, Applicant v Michael Town, Karen Zyta, Carolyn Bender, and Sondra Scott, Respondents
BEFORE: Mary Anne McKellar, Chair
DECISION OF THE TRIBUNAL: October 7, 2015
These are applications under the Pay Equity Act, R.S.O. c. P.7, as amended (“the Act”).
Section 4.2(1) of the Statutory Powers Procedure Act permits a panel of one to decide the issue (notice and service of application) that arises in these matters.
By decision dated August 12, 2015, the Tribunal (differently constituted) described these applications as follows:
These are applications under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended. Case No. 1235-15-PE pertains to an Order of a Review Officer in relation to a pay equity plan that applies to bargaining unit employees represented by Ontario Public Service Employees Union, Local 226. Case No. 1236-15-PE is in respect of an Order of the same Review Officer that applies to non-union employees. According to those Orders, the applicant (formerly Listowel District Association for Community Living) posted a pay equity plan for unionized and non-union employees in 1994 and paid out pay equity adjustments under the plan (or plans respectively) up to the end of 2012. The Orders state that the applicant failed to pay the required pay equity adjustments under the plan(s) in the years 2013, 2014 and 2015.
The Tribunal noted that the applicant took the position that it is not the employer of the employees affected by the Review Officer’s Orders, and directed it to deliver the application and certain other materials to the entity it has identified as the employer, the Crown in Right of Ontario (represented by the Ministry of Community and Social Services) (“the Crown”).
The Crown has now filed a response in this matter, asserting that it is not the employer and that the applicant’s pleadings to the contrary are lacking in particularity. Additionally, it asserts that the Tribunal lacks jurisdiction to address this matter because the identity of the employer was not an issue canvassed at Review Services. It also makes reference to section 1.1 of the Act, and says that it precludes a finding that the Crown is the employer.
Section 1.1(1) of the Act and O.Reg. 387/07 are both pertinent to this question. Section 1.1(1) of the Act reads:
1.1 (1) For the purposes of this Act, the Crown is not the employer of a person unless the person,
(a) is a public servant employed under Part III of the Public Service of Ontario Act, 2006; or
(b) is employed by a body prescribed in the regulations.
(2) If the Crown and a bargaining agent have agreed that the Crown is the employer of the employees represented by the bargaining agent and a pay equity plan in accordance with that agreement was posted before the 18th day of December, 1991, the Crown shall be deemed to be the employer of those employees.
(3) If the Crown posted a pay equity plan before the 18th day of December, 1991 for employees who are not represented by a bargaining agent, the Crown shall be deemed to be the employer of those employees.
(4) This section does not apply,
(a) if a determination that the Crown is the employer was made by the Hearings Tribunal before the 18th day of December, 1991; or
(b) if an application respecting a proceeding in which the Crown’s status as an employer is an issue was filed with the Hearings Tribunal before the 18th day of December, 1991.
(5) This section, except for subsections (2) and (3), does not apply to determine the identity of the employer of an individual if a pay equity plan applicable to that individual prepared in accordance with a review officer’s order was posted before the 18th day of December, 1991.
O.Reg 387/07 reads:
The following bodies are prescribed for the purposes of clause 1.1 (1) (b) of the Act:
Colleges of applied arts and technology established under the Ontario Colleges of Applied Arts and Technology Act, 2002.
Each local health integration network as defined in section 2 of the Local Health System Integration Act, 2006.
Algonquin Forestry Authority.
Greater Toronto Transit Authority.
Greater Toronto Transportation Authority.
Liquor Control Board of Ontario.
McMichael Canadian Art Collection.
Metropolitan Toronto Convention Centre Corporation.
The Niagara Parks Commission.
Ontario Public Service Pension Board.
Revoked: O. Reg. 208/11, s. 1.
Ottawa Congress Centre.
Science North.
Workplace Safety and Insurance Appeals Tribunal.
Workplace Safety and Insurance Board. O. Reg. 387/07, s. 1; O. Reg. 208/11, s. 1.
Omitted (provides for coming into force of provisions of this Regulation). O. Reg. 387/07, s. 2.
Leaving aside for the moment all of the other positions taken by the Crown, the impact of section 1.1(1) and O.Reg. 387/07 on these applications is an issue that it appears appropriate to deal with as a preliminary matter on the basis of written submissions. The applicant and the parties (other than the Crown) are therefore invited to deliver and file written submissions on this issue by no later than October 15, 2015, and the Crown may deliver and file a reply to any such submissions by no later than October 20, 2015.
These files are referred to the Registrar for the purpose of assigning a panel to review any submissions filed pursuant to the directions in the preceding paragraph.
I am not seized.
Dated at Toronto, Ontario this 7th day of October, 2015.
"Mary Anne McKellar"____ Mary Anne McKellar, Chair