Community Living North Perth v Ontario Public Service Employees Union, Local 226
PEHT Case No: 1235-15-PE
Community Living North Perth, Applicant v Ontario Public Service Employees Union, Local 226, Respondent v The Crown in Right of Ontario, as represented by the Ministry of Community and Social Services, Intervenor
PEHT Case No: 1236-15-PE
Community Living North Perth, Applicant v Michael Town, Karen Zyta, Carolyn Bender, and Sondra Scott, Respondents v The Crown in Right of Ontario, as represented by the Ministry of Community and Social Services, Intervenor
BEFORE: Roslyn McGilvery, Vice-Chair, Ann Burke and Irene Harris, Members
DECISION OF THE TRIBUNAL: March 2, 2016
These are applications under the Pay Equity Act, R.S.O. c. P.7, as amended (the “Act”).
A Pay Equity Review Officer issued orders dated July 7, 2015 directing the applicant, Community Living North Perth (“Community Living”), to make pay equity adjustments in favour of certain employees represented by the Ontario Public Service Employees Union, Local 226 (“OPSEU”) (File No. 1235-15-PE) and in favour of certain individual employees (File No. 1236-15-PE) (the “Orders”). In making the Orders, the Review Officer rejected Community Living’s argument that a lack of funding from the government ought to release it from meeting its pay equity obligations under the Act. We note that the Tribunal has considered the funding issue on several occasions (See Pay Equity Office v. Community Living Guelph Wellington, [2015] O.P.E.D. No. 12 (QL) (March 16, 2015) at paragraphs 28 through 36 and the cases cited therein) and has concluded that an inability to pay or a lack of funding does not absolve an employer from meeting its obligations under the Act.
Community Living filed the instant applications because it now asserts that The Crown in Right of Ontario, as represented by the Ministry of Community and Social Services (the “Crown”) is, in fact, the employer of the individuals in question.
The Crown has raised a number of preliminary arguments respecting the application. By decision dated October 7, 2015, the Tribunal (differently constituted) directed the parties to first file submissions with respect to the Crown’s argument that section 1.1 of the Act precludes a finding that the Crown is the employer.
For the reasons that follow, we find that the Crown is not the employer of the employees in question.
THE LAW
- The general rule pursuant to section 1.1 of the Act is that the Crown is not an employer under the Act. However, there are specific exceptions to this general rule set out in that provision. Subsection 1.1(1) 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.
The relevant regulation referenced in subsection 1.1(1)(b), 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.
FACTS AND ANALYSIS
Community Living North Perth used to be called the Listowel District Association for Community Living. On October 19, 1990, a Review Officer found the Crown to be the employer of individuals working at the Listowel District Association for Community Living (the “1990 Order”). In the 1990 Order, the Review Officer directed the Crown and OPSEU “to negotiate a pay equity plan in accordance with the Pay Equity Act, 1987.” Despite this ruling, there is no dispute that the Listowel District Association for Community Living/Community Living North Perth, not the Crown, proceeded to negotiate a pay equity plan with OPSEU, dated June 29, 1994 and commenced paying the required annual 1% adjustments.
There is no dispute that none of the exceptions to the general rule set out in section 1.1 arise in the instant case. Specifically, we note that:
None of the employees to which the 1990 Order applied were public servants;
Community Living is not a prescribed body under O. Reg. 387/07;
The Crown did not post a pay equity plan before December 18, 1991;
There has been no determination by the Tribunal prior to December 18, 1991 that the Crown is the employer of the individuals in question and no application filed with the Tribunal prior to December 18, 1991 in which the Crown’s status as employer is an issue (the 1990 Order is not a Tribunal decision but that of a Review Officer); and
There is no suggestion that the Crown posted a pay equity plan in accordance with the 1990 Order.
Community Living agrees that the Crown and OPSEU did not negotiate a pay equity plan, nor did either party file an application to the Tribunal. It argues that, as a result, it had no recourse at that time to make an application to the Tribunal respecting the Crown’s status as an employer. As such, it argues that the 1990 Order must stand.
This argument does not assist Community Living. First, there was nothing to have prevented Community Living from filing an application with the Tribunal if it did not agree with the 1990 Order. Based on the 1990 Order, it appears that Listowel District Association for Community Living believed that it, not the Crown, was the employer at the time. However, instead of firmly advancing that position, the Review Officer noted that Listowel District Association for Community Living chose to “let the titans fight it out.” In any event, if it had successfully advanced that position before the Tribunal, this would have only reinforced the Crown’s current position that the Crown is not the employer. The fact remains that none of the parties placed the issue before the Tribunal as contemplated by subsection 1.1(4) of the Act.
In Kenora-Patricia Child, [1993] O.P.E.D. No. 57 (QL) (November 9, 1993), a review officer had declared the Crown to be the employer of the employees in question. However, none of the parties filed an application with the Tribunal. At paragraph 5 of that decision, the Tribunal noted that the 1993 amendments to the Act, that added section 1.1, retroactively, changed the rights of the employees in question, rendering the review officer’s orders unenforceable (See also Michipicoten (Township) v. Ontario, [1994] O.P.E.D. No. 15 (QL) (March 14, 1994)).
OPSEU agrees that the Crown is not the employer under the circumstances. However, it maintains that the Tribunal should nonetheless proceed to hear this application and direct the Crown to provide the funding necessary to allow Community Living to meets its obligations under the Act. It argues that section 1.1 of the Act must be read contextually and in a manner consistent with the Provincial Government’s commitment to provide 100% funding for pay equity. It relies upon various announcements that government officials of the day made in the 1990s, which it says confirms this funding commitment. OPSEU argues that this matter should not be decided based on written submissions but that, given its complexity, there ought to be an oral hearing. It also seeks particulars respecting funding obligations as between Community Living and the Crown.
We find that the Tribunal has all of the information necessary to make a determination on this issue in writing. Therefore, OPSEU’s request for an oral hearing is denied.
The Act provides various mechanisms to achieve its stated purpose, which is to redress gender discrimination. The Act focuses on what employers must do in order to meet that objective vis-à-vis its employees and/or the bargaining agents that represent them. In the context of meeting that objective, the Legislature amended the Act to limit the circumstances in which the Crown could be named an employer under the Act. We find that section 1.1 clearly sets out the extent to which the Crown can be named an employer. As the Tribunal stated at paragraph 6 in Kenora-Patricia Child, supra, the language used is clear and unambiguous:
We are sympathetic to the situation of these employees who had rights under the statute which have now been rendered invalid with the amendment. However, we do not find that this amendment falls within the category of statutory language that is either ambiguous or impracticable, and this appears to be a prerequisite for the application of much of the interpretive approach sought by CUPE. Here, the language is clear, the intention of the Legislature is clear and the effect is clear. The effect of the legislation is to invalidate the review officer's orders. The Legislature has exclusive jurisdiction to pass such legislation, subject to the requirements of the Charter. Therefore, subject to Charter arguments, the Tribunal cannot grant the remedy requested by CUPE and the Association.
Absent any ambiguity, the Legislature’s intention is revealed by giving effect to the plain and ordinary meaning of the words used within the overall context of the Act (See Will-Kare Paving & Contracting Ltd. v. R., 2000 SCC 36, [2000] 1 SCR 915 at paragraph 54, R. v. Multiform Manufacturing Co. LTD. c. R., 1990 CanLII 79 (SCC), [1990] 2 SCR 624 at paragraph 9, R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 SCR 686 at paragraph 28, Thomson v. Canada (Deputy Minister of Agriculture), 1992 CanLII 121 (SCC), [1992] 1 SCR 385 at paragraph 25). Under the circumstances, this is not an appropriate case to seek guidance from extrinsic evidence such as comments that government officials made in the 1990s.
The Tribunal derives its authority from the Act. We agree with the Crown that there is no provision under the Act that grants the Tribunal the authority to make an order against the Crown, absent a finding that it is the employer of the individuals in question. To do so would be to inappropriately read words into the Act that are not there (See R. v. McIntosh, supra, at paragraph 28). Further, OPSEU’s reliance upon the decision of Service Employees International Union, Local 204 v. Ontario (Attorney General) (1997), 1997 CanLII 12286 (ON CTGD), 35 O.R. (3d) 508 (Ct J (GD)) is misguided. In that decision, a union brought an application under rule 14.05(3) of the Rules of Civil Procedure for a declaration that an amendment to the Act, which did away with the proxy comparison method, was unconstitutional. The Court found that the amendment discriminated against female employees who were reliant upon the proxy method of comparison versus others for whom pay equity could be achieved through other means. Although, during the course of its analysis, the Court recognized government funding as a feature necessary to the proxy method of job comparison, that decision cannot be read as granting the Tribunal the authority to direct the Crown on how to meet its funding obligations to Community Living in this case.
In light of the foregoing, directing the Crown and Community Living to produce their financial information, service agreements and other contractual arrangements, as OPSEU has requested, would serve no purpose since the Tribunal lacks the jurisdiction to make orders against the Crown.
In sum, the plain meaning of section 1.1 precludes a finding that the Crown is the employer of the individuals in question. As a result, these applications must be dismissed.
DISPOSITION
- These applications are dismissed.
Dated at Toronto, Ontario this 2nd day of March, 2016.
"Roslyn McGilvery" Roslyn McGilvery, Vice-Chair
“Ann Burke” Ann Burke, Member
“Irene Harris” Irene Harris, Member