Ontario Secondary School Teachers' Federation v Ottawa-Carleton District School Board, 2019 CanLII 94412

Pay Equity Hearings Tribunal

PEHT Case No: 2143-18-PE

Ontario Secondary School Teachers' Federation, Applicant v Ottawa-Carleton District School Board, Respondent v Pay Equity Office, Respondent

BEFORE: M. David Ross, Chair, and Irene Harris and Lori Bolton, Members

DECISION OF THE TRIBUNAL: October 3, 2019

1. This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”). The application filing date is October 9, 2018.

2. In this application, the Ontario Secondary School Teachers' Federation (“the OSSTF”) takes issue with a Notice of Decision that was issued by a Review Officer dated April 30, 2013 (“the 2013 Notice of Decision”). The OSSTF alleges that the 2013 Notice of Decision was issued by the Review Officer without having provided notice of the Application to Review Services to the OSSTF, and without obtaining its input during the process.

Background

3. On May 18, 2011, the OSSTF and the Ottawa-Carleton District School Board (“the School Board”) signed a Memorandum of Agreement and Terms of Reference to negotiate a pay equity plan.

4. On November 28, 2011, the School Board filed an Application to Review Services with the Pay Equity Office (“the Office”). The 2013 Notice of Decision sets out that the reason the School Board filed the Application to Review Services was because it submitted that pay equity negotiations had broken down.

5. The Notice of Decision was dated April 30, 2013. The issue that the Review Officer considered in the 2013 Notice of Decision was “whether there is evidence of changed circumstances such that the original deemed approved pay equity plan is no longer appropriate”.

6. The Review Officer concluded that a new pay equity plan did not need to be bargained pursuant to section 14.1 of the Act. The 2013 Notice of Decision also confirms that nothing in the decision prevents the parties from continuing to negotiate or prepare a new or amended plan.

7. There is a factual dispute about whether the OSSTF received notice of the 2011 Application to Review Services, and whether it had the opportunity to participate in the process leading up to the 2013 Notice of Decision. OSSTF asserts that it did not, the Office asserts that it did.

8. There is also a factual dispute about whether the OSSTF received a copy of the 2013 Notice of Decision in or around the time it was issued. The OSSTF has filed a copy of the 2013 Notice of Decision dated April 30, 2013 that is only addressed to the School Board. The Office has filed a copy of the 2013 Notice of Decision that is only addressed to the OSSTF.

9. Notwithstanding the dispute about whether the OSSTF received a copy of the 2013 Notice of Decision from the Office, the OSSTF acknowledges that it received the 2013 Notice of Decision from the School Board during collective bargaining negotiations in September 2014. However, it has provided no explanation for why it delayed four-years to file this application and has submitted that as there is no statutory timeframe for when an application can be brought under the Act, it is under “no obligation to offer an explanation for the timing of bringing an application … in the absence of any motion being brought”.

10. The OSSTF has requested the Tribunal to:

a) set aside the 2013 Notice of Decision on the grounds that it was issued in violation of the duty of procedural fairness incumbent on statutory decision makers;

b) order that the substance of the 2011 Application to Review Services be remitted to a new Review Officer for a full and appropriate decision, with notice to, full consultation and proper rights afforded to the OSSTF; and

c) make any other remedy that counsel may advise, and that the Tribunal may consider that is required to meet the objectives of the Act and is just and equitable in the circumstances.

11. The Tribunal notes that the OSSTF has not requested the Tribunal to conduct a hearing de novo into the merits of whether there has been changed circumstances such that the deemed approved pay equity plan is no longer appropriate (which was the issue that the Review Officer considered in the 2013 Notice of Decision).

Summary of the Submissions of the Parties

12. The OSSTF has asserted that it was not provided with notice of the School Board’s Application to Review Services, and a copy of the 2013 Notice of Decision until the School Board disclosed those during collective bargaining negotiations in or around September 2014. Therefore, the OSSTF has asserted that the conclusions in the 2013 Notice of Decision was issued without affording the OSSTF procedural fairness, and the 2013 Notice of Decision must be revoked.

13. The OSSTF has submitted that the effect of the 2013 Notice of Decision is that it has “stymied” the OSSTF’s good faith attempts to fulfill its statutory representational obligations to its members and to uphold OSSTF’s members’ fundamental human right to equal pay for work of equal value. It submitted that this is a case of first instance where the 2013 Notice of Decision has prevented substantive pay equity negotiations that were contractually obligated between the parties.

14. The School Board submitted that there is no legal basis for the OSSTF’s request for the Tribunal to remit the substance of the 2013 Notice of Decision back to a new Review Officer and requests this matter to be dismissed without a hearing. The School Board submitted that there are no facts set out by the OSSTF that discloses any violation of the Act. Furthermore, the School Board submits that hearings at the Pay Equity Hearings Tribunal are hearings de novo so the Tribunal is not “reviewing” Review Officers’ decisions or the process in which an Order or a Notice of Decision was arrived. That is, the Tribunal does not “judicially review” Orders or Notices of Decisions, but hears applications on its own merits.

15. The School Board has also requested the Tribunal to dismiss this application for delay because it is an abuse of process, and “reserved its right” to make further submissions on that issue. The School Board submitted that while the Act does not have a time limit for bringing an application, the Tribunal’s jurisprudence is clear that it does have the authority to dismiss an application for an abuse of process because of delay. In this case, there has been a five-year delay from when the Notice of Decision was issued and when this application was filed, and there has been a seven-year delay from when the School Board filed its Application to Review Services with the Pay Equity Office.

16. The Office has intervened in this application. The Office submitted that the application does not disclose a prima facie violation of the Act, and that the Tribunal does not have jurisdiction to hear this application. The Office also submitted that because a hearing de novo provides for a complete remedy against alleged deficiencies in the process undertaken by a Review Officer, the Tribunal must be satisfied that the purpose of a hearing will be to address substantive pay equity issues that were addressed by the Review Officer, but no substantive pay equity issues that were before the Review Officer has been raised by the OSSTF in this case.

17. The Office also submitted that the OSSTF’s complaint can be remedied in its entirety if it had filed its own complaint that the Act has not been complied with, but the OSSTF has not yet done so. The Office submitted that should an Application to Review Services be made by the Applicant alleging that the Employer has bargained in bad faith, or continued to bargain in bad faith by refusing to negotiate, a Review Officer would have to consider all of the evidence as to all the circumstances, such as the history and facts concerning the status of pay equity; the parties’ agreements; discussions; and actions, and that the 2013 Notice of Decision and its underlying facts may be considered by a Review Officer along with any other legal issue, such as delay or lack of records. The Office also suggested that a Review Officer could help the parties resolve their disputes through a fresh complaint.

18. In response to the Office’s position that the OSSTF could file a complaint, the OSSTF submitted that Notices of Decision should be final, and it does not benefit anyone to permit parties to re-file complaints whenever they disagree with the conclusions of a Review Officer.

Is this Application Premature?

19. In this case, the parties had agreed to negotiate a new plan and the terms of reference of that negotiation in 2011. In this application, the issues of whether either party had bargained in bad faith, not complied with their 2011 agreement to negotiate a new pay equity plan, or that pay equity not been established or maintained with respect to any classification in accordance with the Act are not within the Tribunal’s jurisdiction because those issues have never been addressed by a Review Officer.

20. Therefore, the practical matter becomes, even if OSSTF is able to persuade the Tribunal that it has the jurisdiction to, and should remit the 2011 Application to Review Services back to the Office, what would be the purpose of doing so?

21. The Office submitted that it serves no purpose to require a new Review Officer to attempt to consider issues as they existed in 2013. The Tribunal agrees with that submission, especially given that the OSSTF has indicated that relevant events that have happened since 2013 may be relevant to the parties’ pay equity obligations, when it wrote: “The most recent job document for this job class available to the OSSTF is a job description dated 2000, which does not represent multiple changes to these job duties in the past eighteen years.” The reference to the “past eighteen years” can only refer the time period from 2000 to 2018. The Tribunal cannot ascertain from the OSSTF’s submissions what circumstances it suggests has changed before or after the time period considered by the Review Officer in the 2013 Notice of Decision.

22. The OSSTF has submitted that there are legitimate purposes to hearing evidence about how the 2013 Notice of Decision was arrived at, which are: that it is concerned that the 2013 Notice of Decision could be relied upon in a fresh application; and that it cannot be that anytime a party does not agree with a Review Officer’s Order or Notice of Decision that it can re-file until it achieves an outcome that it is satisfied with.

23. The Tribunal agrees with the OSSTF on its point that a party should not think that it would be appropriate to file an application to review services simply because it disagrees with the outcome of a Review Officer’s decision. However, each case is determined on its own facts, and the facts underlying this application are not typical nor is the OSSTF’s requested remedy. In this case, it was the School Board that filed the application to review services after the parties had agreed to negotiate a new pay equity plan in 2011. Since the parties’ 2011 agreement to negotiate pay equity, no party has filed a complaint or application to review services with the Office asserting that the Act has not been complied with. The only issue that was addressed by the Review Officer in the 2013 Notice of Decision was whether there has been changed circumstances that statutorily require a new pay equity plan to be negotiated pursuant to section 14.1 of the Act. However, as set out above, the OSSTF has not requested the Tribunal to review that aspect of the 2013 Notice of Decision, which would fall squarely within its jurisdiction (subject to the parties’ other preliminary objections to the Tribunal’s jurisdiction that are not being decided in this decision). Rather, the OSSTF has requested that the 2013 Notice of Decision be set aside, and that the 2011 Application to Review Services be remitted back to the Office.

24. The purpose of the Act is “is to redress systemic gender discrimination in compensation for work performed by employees in female job classes”. The Tribunal has a genuine concern that conducting a hearing into the OSSTF’s allegations would be premature and only serve to continue to unduly delay a potential resolution of legitimately held pay equity concerns held by the OSSTF (if it is ultimately determined that the Act has not been complied with at any time prior to the date of this decision, which of course the Tribunal has made no finding in this decision). This is especially true given that the Office has proffered that a direct way to address any potential that the Act has not been complied with, and that is for the OSSTF to file a fresh application to review services.

25. It is trite to comment that if it is true, and because there are disputed facts the Tribunal makes no finding, that the OSSTF was not given notice of the 2011 Application to Review Services, and the OSSTF did not have the opportunity to make submissions during that process, the precedential value of the 2013 Notice of Decision may be limited, if there is any value at all. However, the Tribunal finds that the allegations that the OSSTF’s concern that the 2013 Notice of Decision will be afforded precedential value is premature because the Tribunal does not yet know whether the Office would rely on it if a fresh complaint is filed. From the Office’s submissions in this application (set out above) there is no reason to believe that this would be the case.

26. On this point, the Tribunal relies on the reasoning found at paragraph 22 of Ontario Public Service Employees Union v. Ontario (Government Services), 2009 CanLII 37958 (ON PEHT) where the Tribunal expressly stated that until the Office has declined to inquire into a complaint, an application filed out of concern that the Office would not act on an application to review services is premature:

27. OPSEU’s position that the Office will not deal with its application assumes that its application falls within, and only within, the class of matters that the Office has stated in its May 2007 newsletter that it will not handle. The only issue that the newsletter states that the Office will not deal with is the negotiation of a Maintenance Agreement. OPSEU’s application complains that the Crown has not maintained pay equity and is required to negotiate a new pay equity plan due to changed circumstances or a sale of business. The Office’s newsletter states that the Office will enquire into complaints that pay equity has not been maintained and will enquire into whether a change of circumstances has occurred. Thus, there is no reason to assume that, if OPSEU were to file a complaint with the Office, the Office would refuse to open a file. The appropriate approach is for OPSEU to file its complaint or concerns with the Office and obtain a determination from the Office as to whether it will handle the complaint. Until such time as OPSEU does so, and the Office in fact declines to open a file, OPSEU’s argument is speculative and premature.

[emphasis added]

27. In both this case and Ontario (Government Services), supra, the applicant’s position was that the Tribunal should hear an application out of concern of what the Office will do if it filed its own complaint. While in this case, there is a 2013 Notice of Decision that the OSSTF has asked the Tribunal to revoke, the Tribunal agrees that it would be premature to conduct a hearing because one party holds a concern about what a Review Officer will do if it were to file a complaint.

28. That being said, the Tribunal does want to ensure to the parties that it takes allegations that procedural fairness and natural justice has been violated seriously. Therefore, this application will not be dismissed for being premature at this time, but rather this application is adjourned sine die until December 31, 2019. If the OSSTF wishes to pursue a complaint that the Act has not been complied with, with respect to this bargaining unit, it can file a fresh complaint with the Office by December 31, 2019. If the OSSTF files such a complaint, it is directed to write to the Tribunal and request that this application continue to be adjourned sine die pending the outcome of that complaint.

29. Given the range of possible outcomes if a fresh application to review services is filed, the Tribunal will review whether the OSSTF’s allegations that it was not afforded procedural fairness issues remain relevant, or if they have been rendered moot. If the Tribunal finds that the procedural issues raised remain relevant, it will consider the jurisdictional objections raised by the School Board and the Office at that time.

30. If the OSSTF does not file a fresh Application to Review Services by December 31, 2019, this application shall be terminated.

Dated at Toronto this 3rd day of October, 2019.

“M. David Ross”

M. David Ross, Chair

“Irene Harris”

Irene Harris, Member

“Lori Bolton”

Lori Bolton, Member