Pay Equity Hearings Tribunal
PEHT Case No: 0134-18-PE
Canadian Union of Public Employees, Local 1328, Applicant v Toronto Catholic District School Board, Respondent
BEFORE: M. David Ross, Vice-Chair, and Members Carla Zabek and Stephen Roth
DECISION OF THE TRIBUNAL: November 13, 2020
This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”).
This matter was held in abeyance pending the resolution of Tribunal File No. 0288-15-PE. The reason that this matter was held in abeyance is because of the considerable overlap between the issues raised in both applications. The Tribunal’s decision of Toronto Catholic District School Board, 2019 CanLII 116293 (ON PEHT) in 0288-15-PE was issued on December 2, 2019. In that decision, the Tribunal found that there was actual prejudice to the employer because of the delay in bringing the application, and the application was dismissed as an abuse of process pursuant to section 23 of the Statutory Powers and Procedures Act, R.S.O. 1990.
By decision dated August 18, 2020, the Tribunal directed the parties to file submissions regarding which issues it believes are still outstanding following the disposition of Tribunal File No. 0288-15-PE. The applicant submitted that the employer has failed to take any steps to maintain pay equity. However, in its September 1, 2020 submissions, the applicant expressly took the position that it was not requesting the Tribunal to hear the merits of this application, but was seeking that the matter be remitted to Review Services:
Local 1328 no longer seeks to have the merits of the underlying application adjudicated by the Tribunal, but rather seeks to have it investigated by Review Services. Local 1328 requests: 1) that Review Officer Rodriguez’s decision dated November 14, 2017 be overturned; and 2) that Review Services investigate the underlying Application as if it had not been closed.
The parties attended at a hearing on November 6, 2020. The Tribunal recessed after hearing the parties’ respective positions on the applicant’s submission that the matter should be remitted back to Review Services. The Tribunal then advised the parties that this application will be dismissed without prejudice to the applicant filing a fresh application to Review Services that sets out the material facts upon which it believes that pay equity has not been maintained, and informed the parties that written reasons will follow. These are those reasons.
The starting point is that the Tribunal hears the matters before it on a de novo basis. This means that it hears the evidence “from the start” or “from the beginning”. Any party can present all its evidence and arguments to the Tribunal for consideration, and the findings contained in the Review Officer’s order or decision is not considered when the Tribunal arrives at its conclusions. The one limitation to this is that in order for the Tribunal to consider an issue, it must have first been raised with Review Services, as the Tribunal does not have jurisdiction to consider matters that have been brought directly to the Tribunal that have not been first raised with the Pay Equity Office.
This is why the Tribunal has been clear that it does not review the process or the conduct of a Review Officer. In Brampton (City) v. Brampton Professional Firefighters Association, 1995 CanLII 7207 (ON PEHT), the Tribunal held:
Even if the facts did support a finding that the process followed by the Review Officer was contrary to the statute, this Tribunal would not have heard evidence on that issue. Tribunal jurisprudence has established that the process at Review Services, and the conduct of the Review Officer, are not issues relevant to proceedings by hearing de novo before the Tribunal: Cybermedix Health Services Ltd. (1990), 1 P.E.R. 41; New Liskeard Police Association (No.1) (1990), 2 P.E.R. 39; Brampton Public Library Board (1993) 4P.E.R. 81. The Tribunal adopted this approach in its rulings on January 4, 1995.
In this case, the applicant has stated that it does not wish the Tribunal to determine the merits of this case. Rather, it requests the Tribunal to declare that the Review Officer should have held the matter in abeyance pending the disposition in Tribunal File No. 0288-15-PE, rather than concluding that the matters were already before the Tribunal and dismissing it. In effect, the applicant seeks the Tribunal to set aside the Review Officer’s decision and remit it back to Review Services.
The applicant did not provide the Tribunal with any authority to support its position that the Tribunal has jurisdiction to make such an order in a circumstance where the merits of the case are not being determined by the Tribunal. Given that this matter proceeded to the Tribunal on a de novo basis, the applicant had the opportunity to present its evidence to prove its assertion that pay equity has not been maintained in accordance with the Act. It does not serve the purpose of the Act to delay the determination of the merits of the applicant’s allegation that pay equity has not been maintained by holding a hearing about whether the Review Officer made a procedural error by not holding the matter in abeyance.
Secondly, and more importantly, the purpose of the Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes. The length of time that it takes from when allegations are raised by an applicant to an employer to when the merits get considered before the Tribunal can be significant; usually it is several years. In the instant case, the underlying application was filed with Review Services on September 22, 2016. Even if the Tribunal took jurisdiction to hear evidence about whether the Review Officer’s decision contained errors that should have it set aside or varied, it does not serve the purpose of the Act to remit a matter back to Review Services that is already four years stale.
It is clear to the Tribunal that the applicant wants to return to Review Services on the issue of whether pay equity has been maintained in accordance with the Act. It is the Tribunal’s view that if the applicant continues to have concerns about whether pay equity has been maintained in accordance with the Act, it should file a fresh application that sets out the basis upon which it believes that pay equity has not been maintained up to the date of any such application.
The employer raised a concern of the potential retroactivity which might be sought should a subsequent application be filed with Review Services. That issue is premature and cannot be determined at this stage. The Tribunal’s decision in Tribunal File No. 0288-15-PE is a final decision. To the Tribunal’s knowledge, no party has sought judicial review of that decision, and the parties remain free to raise any and all arguments about what the impact of the Tribunal’s decision in Tribunal File No. 0288-15-PE should be on any subsequent application filed with Review Services, if, and when, that occurs.
Accordingly, since the applicant is no longer requesting the Tribunal to determine the merits of this application, this application is dismissed without prejudice to the applicant’s right to file a fresh application with Review Services that sets out all of the material facts in support of its assertion that pay equity has not been maintained in accordance with the Act.
Dated at Toronto, Ontario this 12th day of November, 2020.
"M. David Ross" Vice-Chair "Carla Zabek" Member "Stephen Roth" Member