Pay Equity Hearings Tribunal
PEHT Case No: 2390-19-PE
Sharon Nolan-Conway, Applicant v City of Toronto, Respondent
PEHT Case No: 2391-19-PE
Joanne Greene, Applicant v City of Toronto, Respondent
BEFORE: M. David Ross, Chair
DECISION OF THE BOARD: March 10, 2020
These are applications under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”).
The applicants have requested the Tribunal to reconsider its February 21, 2020 decision. The applicants have requested the Tribunal to reverse the order of proceedings, and in the alternative, if the respondents are not ordered to proceed first, to direct the respondent to also file witness statements by the same April 14, 2020 deadline as the applicants.
The basis for the request is that the applicants suggest that the Tribunal’s decision to order the applicants to proceed first was based on the applicants’ statements set out at paragraph 20 of the February 21, 2020 decision; paragraphs 20, 21 and 22 of the February 21, 2020 decision were made without receiving submissions from the parties; and it would be unfair to give the respondent “two kicks at the can”.
The Tribunal does not require submissions from the respondent on this request for reconsideration. The applicants’ request for the Tribunal to reconsider the order of proceeding is denied. The applicants’ alternative request to order the responding party to file its Witness Statements by the same April 14, 2020 deadline is also denied.
Section 29 of the Act and Section 25.0.1 of the Statutory Powers and Procedures Act, RSO 1990, c S.22 confer broad discretion to the Tribunal to manage proceedings before it in the manner that it determines appropriate.
It is well-established that the party challenging the Review Officer’s decision or order before the Tribunal will proceed first. This is subject to the Tribunal deviating from the normal process because of the specific facts of any particular case. This is consistent with the general principle that natural justice requires the respondent to know the case it must meet before having to present evidence to defend against the allegations. At paragraph 44 In the Clow v. Peterborough (City), 1995 CanLII 7217 (ON PEHT), the Tribunal held:
We note that in the Pre-Hearing Memorandum of August 5, 1994, the parties agreed that the City will lead its evidence first. We agree with this proposal. In hearings such as this, where one party seeks enforcement of an order of a Review Officer and the other party seeks a variation or revocation of it, the party challenging the order logically should proceed first. We also note that counsel for Ms. Clow has provided particulars in letters of November 4 and November 22, 1994, which have been filed with the Tribunal.
[emphasis added]
It is not the Tribunal’s practice to seek submissions about the order of proceeding when proceeding in the normal manner. The applicants did not raise the issue of reversing the order of proceeding in either their applications or reply submissions.
The applicants’ conclusion that I relied on their comments that the respondent does not understand its own system as the exclusive basis for directing the applicants to proceed first is not accurate. It was not my intent to lead the applicants to such a conclusion. My comments at paragraph 20 of the February 21, 2020 decision, was to confirm that I had turned my mind to seeking submissions from the parties about deviating from the normal order of proceeding given the limited issue sent to an oral hearing, but did not find it necessary given the pleadings and materials that have been filed in this case.
It is clear from both applications and responses that the applicants have extensive knowledge with regards to the City’s pay equity processes. It is also clear that they have knowledge about how their job classes were evaluated as exemplified by the agreed fact that they raised several disagreements with their job class evaluations with the respondent. The applicants then went so far as to suggest in their reply submissions to the request to dismiss the applications on a prima facie basis that the respondent does not know how to properly apply the pay equity principles. As such, there is no reason to deviate from its normal order of proceeding, and the applicants have not set out a persuasive reason in their request for reconsideration.
The applicants’ request to require the respondent to file its Witness Statements at the same time as the applicants is not granted for two similar reasons. First, this is a case where the respondent has taken the position that the applicants have disagreed with the evaluation of their job classes, and the Tribunal’s jurisprudence is such a complaint does not give rise to a violation of the Act in and of itself. I did not decide this request on a prima facie basis, however, pleadings are not evidence. The respondent has a right to know the case it must meet after the applicants present their evidence that is subject to cross-examination. In this case, to require the respondent to file Witness Statements prior to having the opportunity to cross examine the applicants’ witnesses would be to require the respondent to file evidence before it knows the case it must respond to.
In effect, accepting the applicants’ request could deprive the respondent the opportunity to request the Tribunal to decide the matter because the applicants have not established a case to meet through their evidence. This is generally referred to as a “non-suit” motion - in the February 21, 2020 decision, I referred to this procedural option at paragraph 18 as “resum[ing] its request of the Tribunal to dismiss these applications”.
Secondly, the request to order the respondent to file Witness Statements at the same time as the applicants exacerbates the concern described above. This would require the respondent to prepare, and likely have to file, its Witness Statements before having the opportunity to even review the applicants’ Witness Statements, let alone cross‑examine on those statements.
I disagree with the applicants’ suggestion that this process provides the respondent “two kicks at the can”. This process is no different than any other proceeding where the applicant presents its evidence first, and the respondent has the option of deciding whether to request the decision maker to decide the matter because the applicant has not established an evidentiary foundation prior to calling its evidence.
There is also nothing extraordinary to require a party (singular) to serve a list of witnesses and file a summary of their evidence. Rule 52 of the Tribunal’s Rules of Practice states:
The Tribunal may order a party to serve a list of witnesses and a brief summary of their potential evidence on all other parties to the Application.
[emphasis added]
The reason I directed signed statements is to ensure that the witness has reviewed and agreed with the contents of the witness statement. This eliminates the potential of the statements being prepared by counsel and having a witness take the stand without having agreed to the contents of the statement, defeating the purpose of a witness statement. It should be obvious that if the applicants have difficulty securing a signed witness statement because the witness (other than themselves) is unwilling to cooperate or because of another legitimate reason, they can make that known to the Tribunal, and it can be addressed.
I am not concerned that the applicants will suffer any prejudice by having to proceed first in the absence of Witness Statements from the respondent. The respondent has filed substantial submissions and materials with its response. From these materials, the applicants know the respondents’ position. Furthermore, the Rule in Brown and Dunn continues to apply, and therefore, the applicants will be entitled to respond to contradictory evidence that is expected to be led by the respondents’ witnesses in the normal course.
Lastly, Rules 57 to 61 of the Tribunal’s Rules of Practice continue to apply with respect to disclosure and production of documents. If the applicants believe that documents exist that have not been included with the materials field with the Board to date, the parties are free to make use of those Rules.
Accordingly, the request for reconsideration is denied.
"M. David Ross"
M. David Ross, Chair