Pay Equity Office v. Sexual Assault Support Centre of Ottawa
PEHT Case No: 2512-15-PE
Pay Equity Office, Applicant v Sexual Assault Support Centre of Ottawa, Respondent
PEHT Case No: 2605-15-PE
Sexual Assault Support Centre of Ottawa (SASC), Applicant v Pay Equity Office, Respondent
BEFORE: Caroline Rowan, Vice-Chair, Irene Harris and Ann Burke, Members
DECISION OF THE TRIBUNAL: May 12, 2016
Decision
Case No. 2512-15-PE is a referral under section 24(5) of the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”) for enforcement of a Review Officer’s Order issued under the Act. The Order in issue required the Sexual Assault Support Centre of Ottawa (SASC) (“SASC”) to adjust the pay rates of all employees by 99 cents, to calculate interest owing and to pay out adjustments with interest within 30 days of receipt of the Order.
Case No. 2605-15-PE is an application objecting to the same Order.
In accordance with the Tribunal’s usual practice, Case No. 2512-15-PE has been held in abeyance pending the disposition of Case File No. 2605-15-PE. The balance of this decision relates to the latter application.
In its application, the applicant, SASC, took the position that it is a small not-for-profit organization that does not have the ability to pay the entire amount of the Order within the stipulated timeframe of 30 days. It notes that it is not unwilling to comply with the Order but that it is financially and legally unable to meet the 30 day timeline and does not believe that the Order is reasonable given the nature of the organization and its financial circumstances. By way of remedy, SASC seeks, among other things, an order that it pay the calculated adjustments under the order over a period of nine years and that there be no pre-judgement or post-judgement interest.
By decision dated March 18, 2016, the Tribunal directed the applicant, SASC, to file submissions with the Tribunal addressing why the application should not be dismissed for failing to disclose a prima facie case.
In its submissions filed in response to this direction, the applicant reiterates that it cannot possibly meet a 30 day deadline to pay such a significant order. The applicant however notes that it has complied with the Order, in part, by paying certain amounts owed to eleven individuals. In the circumstances, the applicant states that any future Order should reflect these payments being made. In its submissions, the applicant also raises for the first time a disagreement with the Order as it relates to Susan Havart. In this connection, the applicant refers to the fact that Ms. Havart executed a Release against SASC in connection with her departure from the organization on November 27, 2012 and that they do not therefore owe monies determined by the pay equity office. The applicant also submits that, to the extent that Ms. Havart was the anonymous individual who brought the complaint in the first place, the Order should be revoked in its entirety. The applicant further argues that, on the basis of this new information that it has set out a prima facie case for variance of the Order of the Pay Equity Office and for proceeding to hearing.
To 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 Professional Fire Fighters’ Assn., Local 519 (1991), 2 P.E.R. 86; Parry Sound District General Hospital (No.2.) (1996), 7 P.E.R. 73; Villa Colombo Home for the Aged, Inc. (1997), 8 P.E.R. 133. In Peterborough Firefighters, cited above, the Tribunal set out the test for a prima facie case, as follows:
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.
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 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.
In the present case, the sole basis set out in the application for the applicant’s original request for a variance of the Order relates to the applicant’s inability to pay due to an absence of funding for pay equity increases. The applicant notes that it has complied with the Order in part except in so far as it is limited by its financial ability to do so. As noted, in its responding submissions, the applicant reiterates that it cannot possibly meet a 30 day deadline to pay such a significant order and notes that it would be unable to remain operational if that were required.
- The Tribunal has however on prior occasions indicated that lack of funding is not a defence 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. In Kensington Village (2000-01), 11 P.E.R. 1, the Tribunal held that lack of funding is not a defence to an employer’s obligation to comply with a pay equity plan or the Act, explaining as follows:
… [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.
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.
Instead, the legislation sets out a scheme of mandatory obligations and mandatory timeframes for the payment of adjustments. …
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.
Accordingly, we dismiss the application on the basis that it fails to state a prima facie case for revoking the Review Officer’s Order.
Similarly, in Regesh Family and Child Services (2001-02), 12 P.E.R. 94, the Tribunal held 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”. In the circumstances, it determined that even if it were satisfied that the applicant did not have the ability to pay and did not have the funding to meet its pay equity obligations, the Tribunal would not be able to issue the remedy requested.
For the same reasons, the Tribunal finds it appropriate to dismiss the application as originally filed on the basis that lack of funding or resources to comply with the Order within the stipulated time frame does not make out a prima facie case for revoking or varying the Review Officer’s Order. The allegations set out in the applicant’s responding submissions to the same effect relating to the applicant’s inability to pay the amounts owing under the Order are also hereby dismissed.
In addition, the new allegations set out in the applicant’s responding submissions to the effect that the Order must be revoked in its entirety because it alleges that Ms. Havart was the anonymous individual who brought the complaint in the first place also fail to make out a prima facie case for varying or revoking the Orders. As noted by the Tribunal in Humber College of Applied Arts and Technology (Re), [2000] O.P.E.D. No. 5, at para 27, a review officer has the jurisdiction to issue an order with respect to a plan even in the absence of a complaint or an objection where he or she has formed the opinion that there has been a contravention of the Act. The review officer therefore has the jurisdiction to issue an order irrespective of whether there was even a complaint filed where he or she formed the opinion that there has been a contravention of the Act. In Humber College of Applied Arts and Technology (Re), cited above, the Tribunal noted that its conclusion in that regard is consistent with the purpose and scheme of the Act, explaining as follows:
- In our view, this conclusion is consistent with the scheme of the Act as a whole and with its overriding purpose. It could not have been the intention of the Legislature, in legislation intended to take “affirmative action to redress gender discrimination in the compensation of employees employed in female job classes”, that Review Officers, who are mandated to enforce the Act, and are given very broad powers of entry, production, search and seizure, could do absolutely nothing about a violation which is discovered while monitoring the preparation and implementation of a plan.
Given that a review officer can issue an order to rectify a contravention of the Act where a review officer forms an opinion that there has been a contravention of the Act while engaged in the monitoring function mandated by the Act, the identity of the complainant (or whether there was a complainant) is not relevant. This aspect of the applicant’s complaint is therefore also hereby dismissed.
The applicant has however also raised entirely new allegations for seeking variance of the Order which relates to the employment of Ms. Havart and her execution of a release. The Tribunal will treat these allegations as an amendment to the application originally filed. The Tribunal is not persuaded that it is appropriate to dismiss these allegations relating to Ms. Havart’s employment summarily and accordingly refers them for consideration at a hearing.
Apart from the allegations raised in the amended application relating to Ms. Havart’s employment, the allegations made by the applicant are hereby dismissed for failing to raise a prima facie case for revoking or varying the Order.
The balance of the application is referred to the Registrar to list for hearing.
Dated at Toronto, Ontario this 12th day of May, 2016.
“Caroline Rowan”
Caroline Rowan, Vice-Chair
“Irene Harris”
Irene Harris, Member
“Ann Burke”
Ann Burke, Member