PAY EQUITY HEARINGS TRIBUNAL

PEHT Case No: 2028-15-PE

Ontario Secondary School Teachers' Federation on behalf of the Educational Assistants Bargaining Unit, Applicant v Simcoe Muskoka Catholic District School Board, Respondent

PEHT Case No: 2029-15-PE

Ontario Secondary School Teachers' Federation on behalf of the Office and Clerical Bargaining Unit, Applicant v Simcoe Muskoka Catholic District School Board, Respondent

BEFORE: Patrick Kelly, Alternate Chair

DECISION OF THE TRIBUNAL: June 21, 2019

1. This is a request for reconsideration filed on May 3, 2019 by Ontario Secondary School Teachers’ Federation (“OSSTF” or “the Federation”) of a decision of the Tribunal dated December 17, 2018 concerning the above-referenced matters (“the Decision”).

2. OSSTF represents the two bargaining units of Simcoe Muskoka District School Board (“the Board”) that were the subject of the Decision: the Educational Assistants bargaining unit (“the EA Unit”) and the Office and Clerical Employees bargaining unit (“the OE unit”).

3. In the Decision the Tribunal determined that the Board violated its duty to bargain in good faith and its duty to endeavour to reach amended pay equity plans for each bargaining unit. The Tribunal ordered the parties forthwith to resume their negotiations pursuant to agreed Terms of Reference, and established January 31, 2019 (or such other date mutually agreeable to the parties) as the deadline for agreement, failing which the Tribunal ordered that a Review Officer prepare amended pay equity plans for the Board’s establishment, at the Board’s expense.

4. The Federation acknowledges that its request for reconsideration falls outside the 20-day period stipulated in Rule 80, but requests that the Tribunal relieve against the strict application of Rule 80. Furthermore, the Federation says that during the post-Decision negotiations between the parties:

(a) The Board took inconsistent positions on the date of retroactivity, ultimately insisting it owed no retroactivity and forcing negotiations to impasse on this point - a position in direct contradiction to the Tribunal's

Order;

(b) The Board repeatedly advanced the same position on banding, over multiple days and in respect of both bargaining units, despite the Federation's clear and principled refusal of that position, thus violating the obligation to "endeavor to agree"; and

(c) The Board repeatedly advanced cost considerations - both within and outside of the negotiating process - as a reason to avoid full retroactivity and appropriate male comparators.

5. OSSTF contends that its request for reconsideration is based on a factor that the Tribunal recognizes as a valid basis for reconsideration, namely that, since the issue of the Decision on December 17, 2018, there has been a change in circumstances such that the Decision should not stand. OSSTF submits that in adopting the approach that it allegedly did with respect to the post-Decision negotiations, the Board effectively attempted to bypass its statutory and contractual obligations in respect of pay equity, as well as the remedial order set out in the Decision. It characterizes the Board’s conduct as an ongoing violation of the Act, including the Act’s provisions concerning the duty to bargain in good faith, and for that reason seeks a “robust remedy”, which, as it turns out, is essentially the remedial relief the OSSTF sought in each application and at the hearing. That is, it asks the Tribunal to order pay equity plans for each unit with reference to specific male comparators, and to order retroactive pay equity adjustments to 2001 with interest. The OSSTF also seeks compensatory damages. In the alternative, the OSSTF requests clarification by the Tribunal concerning paragraph 134 of the Decision.

6. In its response, the Board submits that the Tribunal ought not to extend the time limits for the filing of the request for reconsideration. Furthermore, it denies the Federation’s allegations concerning the post-Decision conduct of the Board. It contends that there is no basis upon which the Tribunal ought to reconsider the Decision, and it asks the Tribunal to confirm the Decision’s order and direct the parties to a Review Officer. Finally, it opposes an award for compensatory damages to the Federation, and says there is no need for the Tribunal to clarify the Decision.

7. Given the result in this decision concerning the merits of OSSTF’s request for reconsideration, it is unnecessary to deal with the Board’s contention that the Tribunal should not grant OSSTF permission to file the request for reconsideration outside the time limits established in Rule 80.

8. In my view, in dealing with the merits of OSSTF’s request for reconsideration, it is not necessary to resolve the disputes of fact between the parties concerning the conduct of the Board in the post-Decision negotiations. However, for purposes of this decision, I assume, without finding, that OSSTF’s allegations are true and provable.

9. Both parties refer to Ontario Nurses' Association v. Women's College Hospital, 1990 CanLII 3994 (ON PEHT) as authority for establishing the principles applicable to reconsideration of a final Tribunal decision. The Tribunal in that matter noted that the Pay Equity Act contains a strong privative clause, which clearly implies that decisions of the Tribunal are meant to be final. As a result, the Tribunal should reconsider a decision only where there are "compelling and extraordinary circumstances" which make reconsideration appropriate. As the Tribunal observed at paragraph 4:

To hold otherwise would be to jeopardize the Tribunal's goal of bringing finality to matters in an expeditious manner. It is also important to recognize that the labour relations community has an expectation that the Tribunal will be consistent in its decisions and will bring finality to matters which come before it.

10. In considering whether there was some reason to interfere in a case which has already received a decision intended to be final, the Tribunal in Women's College Hospital set out three factors which may be useful. These factors have been applied consistently since 1990. One of the factors is whether, since the decision, there has been a change in circumstances such that the decision should not stand. In other words, a mere change in circumstances is not determinative. The Tribunal decisions since 1990 have been uniform and consistent and require "compelling and extraordinary circumstances" in order to consider a request for reconsideration.

11. Change in circumstances has very rarely been raised as the basis for a request for reconsideration. In Helen Henderson Care Centre v. Service Employees' International Union, Local 183, 2002 CanLII 49434 (ON PEHT) the legislation had changed after the date of the Tribunal's decision, but because it did not have retrospective effect, the request for reconsideration was unsuccessful. The Tribunal determined that the employers in that case were simply trying to re-argue the case, and stated that that was not an appropriate basis for a request for reconsideration.

12. The Tribunal provided additional clarification on when a change in circumstances could form the basis for a request for reconsideration in GL& V Process Equipment Group Inc. (No.4) (1999 – 2000), 10 P.E.R. 72. The Tribunal stated at paragraph 8 that the party seeking reconsideration "must show that the facts had not crystallized (i.e. could not have been ascertained) at the time of the hearing…". In the present case, the Decision had already contemplated the possibility that the negotiations could be unsuccessful in producing mutually agreed upon pay equity plans. The Decision anticipated that the bargaining might not reach the desired result, and it put a stop-gap measure in place to deal with that eventuality, namely that a Review Officer would develop the amended pay equity plans.

13. The only decision in which a reconsideration was granted due to a change in circumstances appears to be Haldimand-Norfolk (No. 7) (1992), 3 P.E.R. 10. In that matter, it was decided that the Tribunal's original decision should not stand because it could not be put into effect. The employer admitted that it was not in compliance with the Tribunal’s original decision because it claimed it did not have the necessary funding in order to comply. The Tribunal set aside the original decision and ordered that a Review Officer immediately prepare a pay equity plan after conducting a pilot test of the trade union’s proposed gender neutral comparison system. This is entirely different from the present case. The Board does not agree that it has failed to comply with the Decision. It says that it has in fact spent time and resources in an endeavour to achieve amended pay equity plans.

14. Moreover, as noted above, the Tribunal in this case already considered the possibility that the negotiations may not lead to agreed amended pay equity plans and, to that end, had fashioned a remedy to address that possibility. In other words, if negotiations were successful, the parties could agree on amended pay equity plans. If the negotiations were unsuccessful, a Review Officer would be appointed to oversee the development of amended pay equity plans. The Tribunal has, in its Decision, covered both possibilities. Regardless of which scenario arose after the Decision was issued, the result will be that a pay equity plan will be prepared. In contrast, the decision in Haldimand-Norfolk (No. 7) had not addressed the possibility that the parties' negotiations could be unsuccessful. As a result, it was determined that the original decision should not stand because it was of no effect and provided no viable remedy.

15. In the Decision, the Tribunal anticipated the possibility that the parties would fail to reach agreement on amended pay equity plans. That is precisely why the Tribunal fashioned an alternative remedy consisting of the order with respect to the appointment of a Review Officer. OSSTF does not explain in its request for reconsideration why the Tribunal’s alternative remedy is not up to the task of achieving what the parties themselves are unable to achieve in bargaining.

16. For these reasons, the Tribunal declines to exercise its discretion to substitute the remedies ordered in the Decision with the remedies sought by OSSTF in its request for reconsideration.

17. Regarding the Federation’s request for clarification of paragraph 134 of the Decision, it is my view that it would not be appropriate to augment or parse the Decision in this manner, particularly where the parties do not agree on the necessity for the Tribunal to do so.

18. Finally, with respect to OSSTF’s request for compensatory damages, in the absence of any findings as to OSSTF’s allegations of bad faith bargaining on the part of the Board in the post-Decision period, it would not be appropriate to entertain that request in the context of a request for reconsideration. The Tribunal therefore declines to consider compensatory damages.

Dated at Toronto this 21st day of June 2019.

“Patrick Kelly” ____

Patrick Kelly, Alternate Chair