PAY EQUITY HEARINGS TRIBUNAL
PEHT Case No: 2872-19-PE
Tina Lahtinen, Applicant v Corporation of the City of Thunder Bay, Respondent
BEFORE: M. David Ross, Chair
DECISION OF THE TRIBUNAL: April 9, 2020
[1]. This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7 as amended (“the Act”), in which the applicant has asserted that her job, Supervisor, Financial Services, was not evaluated properly, and that a different male comparator should have been chosen by the respondent.
[2]. By decision dated February 12, 2020, I directed the applicant to file submissions in response to the respondent’s request to dismiss this application on a prima facie basis. The applicant filed her submissions in accordance with the Tribunal’s directions. Included in these submissions was a request for this application to be assigned to someone else.
Does a Reasonable Apprehension of Bias Exist in this Application?
[3]. I will first address the applicant’s request for me to be removed as the decision maker because of an apprehension of bias. The applicant asserts that I should not decide this case because I had previously worked at the law firm that is representing the responding party in this application.
[4]. It is well established in law that the fact that an adjudicator’s professional background does not, in and of itself, create a reasonable apprehension of bias. I set out the law on this issue, after receiving a similar request in my capacity as a Vice-Chair at the Ontario Labour Relations Board, in Rose Valle, 2019 CanLII 51831 (ON LRB). In that decision, I cited the decision of Brescia University College, 2018 CanLII 124324 (ON LRB):
- Canada (National Energy Board) is cited with approval in Marques et al. and Dylex Ltd. et al., where the court observes that the specialized functions of the OLRB mean that Vice-Chairs will often have prior association with parties appearing before the Board. In Terceira the Court of Appeal cited Marques et al. and Dylex Ltd. et al, observing as follows:
… In selecting its adjudicators, the OLRB draws upon the expertise of practitioners from within the labour and employment bar. A presumption of disqualification would operate to disregard this practical reality. As stated by Morden J. in Re Marques and Dylex Ltd., at p. 70: “Most, if not all of those appointed [to the OLRB], are bound to have some prior association with parties coming before the Board.” Having said that, there will of course be instances of adjudicative bias as, for instance, where a decision-maker has a material pecuniary interest in a proceeding.
In Canada (National Energy Board), the court also notes that Vice-Chairs take an oath of office that gives rise to a presumption of impartiality and refers to the Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c.H.14 that prohibits a person from hearing a dispute under that Act if they have a pecuniary interest in the issues before them or if they acted as solicitor, counsel or agent for either of the parties within six months before the appointment.
These observations underscore that cases will come before OLRB Vice-Chairs who may have experience with the issues raised, or who may have worked in the same industry or economic sector as the parties before the Vice-Chair. A Vice-Chair may even have had a connection with a party. This issue was examined in some detail in Hyde Park, where the professional background of the Vice-Chair was raised as a basis for reasonable apprehension of bias. The Board held as follows:
In cases where courts have found a reasonable apprehension of bias arising from the activity of a judge or adjudicator outside of the hearing or trial room, they have done so in cases where the adjudicator is: (a) involved in the issue simultaneously with his or her hearing of the matter before him or her and (b) personally involved as a litigant or complainant in the other matter. (See The Great Atlantic & Pacific Company of Canada Limited and Ontario Human Rights Commission, et al (1993) 1993 CanLII 8616 (ON SC), 13 O.R. (3d) 824 and Benedict v. Her Majesty the Queen in Right of Ontario [2000] O.J. 1013.
In applying the objective test, the Vice-Chair held that there was no basis for finding a reasonable apprehension of bias based on his professional background.
A similar consideration occurred in Terceira, where the Vice-Chair had several years earlier acted for a party who was appearing before him. There was no suggestion (as there is not in this case) that the Vice-Chair was in possession of confidential information as a result of his earlier retainer. Furthermore, his assertion that he did not know any facts that affected the case was accepted at face value. The Court of Appeal upheld the Vice-Chair’s decision not to recuse himself, finding that on an objective test, there was no basis to support a claim of a reasonable apprehension of bias. The court observed, among other things, that a prior connection between a Vice-Chair and a party is to be expected, given that the OLRB draws upon the expertise of practitioners from within the labour and employment bar when it selects adjudicators.
In considering whether a Vice-Chair’s background raises a reasonable apprehension of bias, the following factors are relevant: Vice-Chairs come from the community, and it is expected that they may have had professional relationships with parties appearing before them. Vice-Chair affirm an oath under section 110(8) and there is a strong presumption of impartiality.
In this case, I advised the parties I never recalled acting for the Union when I was counsel to CAUT (more than three years ago) and I could not have acted for the Union in connection with an application for consolidation, because the legislation took effect long after I left CAUT. It was not argued that I have any interest in the outcome of this matter or that I have any knowledge of facts relevant to this application, and I confirm that this is the case.
To succeed in establishing a reasonable apprehension of bias in this case, the Employer must establish that a reasonable, right-minded and properly informed person would think that my decisions in this case were consciously or unconsciously influenced by my role as Counsel to CAUT. I was Counsel to CAUT more than three years ago. CAUT is not the Union but is an umbrella organization of associations that included the Union as a member, and I did not act for the Union and have no knowledge of information relevant to the application. Despite the Employer’s arguments to the contrary, I find that there is no basis on which a reasonable right minded and properly informed person would think that my decision was informed by my role as counsel to CAUT. Accordingly, for all of those reasons, I dismissed the motion.
[emphasis added]
[5]. I adopt the above reasoning as it is equally applicable to my appointment as the Presiding Officer of the Tribunal.
[6]. The applicant can be assured that I have no recollection of providing services to the responding party, and specifically, I have never been personally involved with the responding party’s pay equity plan or the applicant’s specific complaint giving rise to this application. Accordingly, I have no interest in the outcome of this matter or knowledge of the facts relevant to it.
[7]. Accordingly, I find that a reasonable, right-minded and properly informed person would not think that my decisions were consciously or unconsciously influenced by my professional background. The applicant’s request for the Tribunal to reassign this matter to another adjudicator is dismissed.
Additional Documents
[8]. The applicant’s complaint is that the evaluation of her job class did not reasonably consider the added responsibilities and that the male comparator chosen is inappropriate.
[9]. In the response submissions to the request to decide this application on a prima facie basis, the applicant pointed out that she does not have the same level of information regarding how the jobs were evaluated that the respondent does, and the only way that she can substantiate her argument is to review how the classifications are scored. The applicant provided the example that the Supervisor, Financial Services (Comm Serv) and Supervisor, Financial Services (TWK) are in different pay bands, and she does not know why.
[10]. It is not apparent to me from the materials available that the Tribunal has received the factor by factors evaluations of the job classes. It does appear from the Review Officer’s decision, that this material was before Review Services.
[11]. I am sensitive to the applicant’s submission that it is difficult for her to make full submissions about why her job was unreasonably evaluated without access to records about how each was scored. As such, I find it appropriate to direct the respondent to file the evaluations of a selection of job classes and allow the applicant time to file any submissions after reviewing these documents, prior to me deciding the respondent’s request to dismiss on a prima facie basis.
Directions
[12]. The responding party is directed to provide the applicant with, and file a copy with the Tribunal, a copy of the job descriptions and the respective pay equity evaluations for the following job classes:
- Supervisor, Financial Services (Comm Serv)
- Supervisor, Financial Services (TWK) and
- Coordinator Parks Services
[13]. These documents shall be filed electronically with the Tribunal. After these documents are delivered, the respondent is directed to file a Certificate of Delivery confirming when and how the documents were delivered to the applicant.
[14]. Given the current pandemic and given that the respondent is a municipality that is certainly faced with unprecedented issues, I will not order a specific deadline for when these documents must be produced. Rather, if these documents are not produced by May 9, 2020, counsel for the respondent is directed to advise the Tribunal in writing when it believes it will reasonably be able to produce these documents.
[15]. The applicant shall have 21 calendar days from the date she receives these documents from the respondent to file any further submissions that she would like the Tribunal to consider with regards to the respondent’s no prima facie case motion. These submissions must be filed electronically as set out on the Tribunal’s website.
[16]. This panel will consider any submissions received in due course.
"M. David Ross"____
M. David Ross, Chair