Kiviaho v. Huron Lodge Community Service Board Inc., 2021 CanLII 115304

Pay Equity Hearings Tribunal

PEHT Case No: 2262-20-PE

Kristine Kiviaho, and Cynthia Farquhar, Applicants v Huron Lodge Community Service Board Inc., Respondent

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

DECISION OF THE TRIBUNAL: November 5, 2021

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 January 4, 2021.

2. The applicants, Kristine Kiviaho and Cynthia Farquhar, assert that Huron Lodge Community Service Board Inc. ("Huron Lodge") has not maintained pay equity as required by the Act. Specifically, they assert that their classifications have not been evaluated in accordance with the principles required by the Act after Review Services directed them to conduct a pay equity maintenance exercise.

3. The hearing in this matter took place on October 21, 2021.

Background

4. Huron Lodge was incorporated on November 25, 1994. It achieved pay equity and posted a plan on February 22, 1995. Accordingly, the pay equity plan is a deemed approved plan pursuant to section 15(8) of the Act.

5. On June 16, 2016, the applicants filed an application with Review Services alleging that pay equity had not been maintained. By order dated November 27, 2019, the Review Officer found that Huron Lodge had failed to maintain pay equity and ordered Huron Lodge to conduct a review of the plan; reevaluate the job classes and to make any pay equity adjustments as required. This was all ordered to be done under the supervision of Review Services.

6. As a side note, the phrasing used in this order that "pay equity had not been maintained" does not appear to be entirely accurate to the Tribunal, especially considering the orders made by the Review Officer. In our view, it is more accurate to characterize the Review Officer's findings in the November 27, 2019 order as that "Huron Lodge was unable to demonstrate that it had maintained pay equity" and ordered Huron Lodge to undergo the process to determine whether any payments were owing as a result of pay equity maintenance. The distinction may be a small one, but it seems to be an important one as the Review Officer did not make a finding in the November 27, 2019 order that any job classes were improperly evaluated or that any payments were actually owing.

7. Huron Lodge complied with the orders and on February 14, 2020, and it provided the results to Review Services. The PV results showed that no adjustments were owing to the applicants' job classes from 2008 to 2020. The applicants disputed those results before Review Services.

8. Review Services issued a decision on this dispute on November 17, 2020. In this decision, the Review Officer found that no pay equity adjustments were owing as the job evaluations that were completed by Huron Lodge were reasonable.

9. The applicants filed this application challenging the November 17, 2020 order.

The Preliminary Issue

10. The parties attended a Pre-Consultation Conference ("PCC") in March 2021. The parties agreed to a "Pre-Hearing Conference Memorandum" at or immediately following, the PCC which agreed to several procedural matters. One of those agreements was contained at paragraph 4 of that Memorandum:

Neither the applicants, nor the respondent, intends to raise any preliminary issues before the panel of the Pay Equity Hearings Tribunal assigned to the hearing of this matter

11. A hearing date was set for October 21, 2021.

12. On October 14, 2021, Huron Lodge filed a letter with the Tribunal indicating that it was its "intention to bring a motion to dismiss the Application at the outset of the hearing on the basis that the Application, and subsequent materials submitted, discloses no prima facie case of violation of the Pay Equity Act".

13. At the outset of the hearing, the Tribunal did not permit Huron Lodge to make these arguments as a preliminary matter. The parties explicitly agreed that neither party intended to raise preliminary issues in the March 23, 2021 Pre-Hearing Conference Memorandum. The Tribunal holds parties to their agreements, even if the agreements were made prior to engaging counsel. Rather, the Tribunal permitted Huron Lodge to raise their argument, not as a preliminary matter, but akin to a "non-suit" motion at the conclusion of the applicant's case after the evidence was heard by the Tribunal and Huron Lodge had the opportunity to cross-examine the applicants on that evidence.

The Evidence

14. The applicants filed a joint witness statement and the documents they relied upon in advance of the hearing in accordance with their Pre-Hearing Conference Memorandum and the Tribunal's Rules of Practice. At the commencement of their evidence, both applicants adopted the portions of the joint witness statement that pertained to their job classes.

15. The applicant's evidence went to their belief that their jobs were not scored accurately or reasonably.

16. The applicants testified that the evaluation of their job classes did not reflect their actual responsibility, experience, judgement, accountability and qualifications. Their evidence exclusively pertained to their submissions about why their job classes should have been evaluated higher than what Huron Lodge scored them at.

17. After a short cross-examination, and the applicants confirming that they had no further evidence to call, Huron Lodge raised its motion that the applicant's evidence does not establish a violation of the Act.

A Summary of the Parties' Submissions

18. Huron Lodge submitted that this was a clear case of the applicant's taking issue with the evaluations of the ratings of certain factors of their specific job classes, but they have not provided any evidence that the job evaluation process did not comply with the Act. Specifically, it asserts that there was no evidence, or allegation, that the job evaluation did not consider the factors required by the Act, and that the Tribunal does not interfere with an employer's evaluation unless it can be demonstrated that the statutory criteria was not considered, or that elements of the job description were unreasonably excluded from the job evaluation process. Huron Lodge submitted that since neither of those aspects are present in this case, the Tribunal should dismiss this application.

19. Huron Lodge relied on the following cases in support of its argument: City of Peterborough, 1991 CanLII 4448 (ON PEHT); Management Board Secretariat, 1993 CanLII 5413 (ON PEHT); Centennial College, 2002 CanLII 49436 (ON PEHT); Ottawa Heart Institute, 2004 CanLII 60148 (ON PEHT); Brant Community Healthcare, 2017 CanLII 37589 (ON PEHT); Corporation of the City of Thunder Bay, 2020 CanLII 86643 (ON PEHT).

20. The applicants submitted that even though they did not use the word "unreasonable", it is clear from their evidence that they have challenged the job evaluations as being unreasonable as the scope of their job duties were not given reasonable consideration. The applicants submitted that their evidence clearly shows that elements of their job classes were unreasonably excluded. The applicants also submitted that it is unreasonable that certain ratings were lower than earlier ratings when they have received more responsibilities in those factors.

Analysis and Decision

21. The starting point for this analysis is that this is a deemed approved pay equity plan, and that the revaluation for the maintenance process was directed and overseen by Review Services.

22. These deemed approved pay equity plans are given deference from the Tribunal because the job evaluation process is not an exact science, and a range of reasonable outcomes is possible. At paragraph 21 of Centennial College, supra, the Tribunal held that parties to a plan are held to a reasonableness standard with respect to how they evaluated the different job classes:

21. As set out above, the Tribunal has consistently refused to inquire into complaints about a deemed approved plan that have not made out a prima facie case of a contravention of Part I of the Act. The case law is succinctly summarized in Management Board Secretariat (No. 6), (1998-99), 9 P.E.R. 48 at paragraph 9:

The standard of review to be used when there is an allegation that a deemed approved plan contravenes the Act has now been established by Tribunal jurisprudence. Correctness is the appropriate standard when reviewing whether a plan contravenes a precise provision of the Act, and reasonableness is the appropriate standard when deciding whether a plan contravenes a provision that is not capable of exact application, but implies a range or an exercise of discretion. Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73; Ottawa Board of Education (No. 2) (1996), 7 P.E.R. 9; Parry Sound District General Hospital (No. 1) (1995), 6 P.E.R. 124.

25. The Applicants have not alleged that the employer failed to consider all of the statutory criteria. Rather, they assert that the employer, through a lack of appreciation of the work they performed, undervalued certain aspects of job content, with the result that their job class was rated too low.

[emphasis added]

23. At paragraph 26 of Centennial College, supra, the Tribunal held that a complaint that one job class should have been evaluated higher is not meaningful without an examination of all of the job classes relative to one another:

26. The comparison of jobs is a task, or rather a series of tasks, that contemplates a range of choices. Moreover, the evaluation of a job class is not carried out in isolation. The Act requires employers to examine all of the jobs in its establishment and measure them relative to one another. A complaint that one job should have been evaluated higher is not meaningful without more. The Applicants have not pleaded any facts that would cause us to conclude that Centennial College's evaluation of the Applicants' job class was unreasonable.

[emphasis added]

24. At paragraph 44 of Management Board Secretariat, supra, the Tribunal described the types of circumstances that are required before the Tribunal will consider interfering with a deemed approved plan:

44. If the parties have made a reasonable effort to accurately capture the job content, then the Tribunal will not inquire further. Therefore, if on the face of the Application, it is clear that the system ignored one of the criteria, or failed to apply these criteria, or unreasonably excluded important job information related to any of the four criteria, then the Tribunal should proceed to hear the merits of the Application.

25. Therefore, in this case, in order to have established a violation of the Act, the applicants must have led evidence that could lead to the conclusion that the job evaluation system either: ignored or failed to apply one of the statutory criteria or unreasonably excluded important job information related to any of the four statutory criteria.

26. The applicants were provided with the full opportunity in advance of the hearing to file any materials they wished the Tribunal to consider, including witness statements, with respect to this issue, and during the hearing to explain and present evidence before the Tribunal about how the evaluations unreasonably excluded job tasks and job duties from the evaluation.

27. While it is clear from the applicants' submissions and evidence that they disagree with how their job class was evaluated, their evidence regarding their tasks was considered and evaluated by Huron Lodge. The evidence included a factor by factor disagreement and argument for why their class should have been rated higher. As such, their disagreements pertain to the ratings associated with their job classes, not a disagreement about whether any of the statutory criteria was not considered at all. This is exactly the kind of dispute in which the Tribunal has repeatedly said it will not interfere with.

28. Given the well-establish jurisprudence in these kinds of cases that appear before the Tribunal, we find that the applicants have not established, accepting their evidence and submissions as true, that the evaluation of their job classes did not consider any of the four statutory criteria, or has unreasonably excluded important job information related to the four statutory criteria.

29. Accordingly, the applicants have not established a violation of Part I of the Act. This application is dismissed.

"M. David Ross" M. David Ross, Chair "Lori Bolton" Irene Harris, Member "Irene Harris" Lori Bolton, Member