Trumble v. The Corporation of the Township of Limerick, 2021 CanLII 132917

PEHT Case No: 1566-21-PE

Jennifer Trumble, and Margo Reid, Applicants v The Corporation of the Township of Limerick, Respondent

Before: M. David Ross, Chair

Decision of the Tribunal: December 9, 2021

Decision

1This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”). This application was filed on November 23, 2021.

2Section 4.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, permits a panel of one to issue this decision.

3In this application, the applicants assert that the respondent has not achieved or maintained pay equity and take issue with several elements of the pay equity plan that was created in 2019. The applicants request the Tribunal to make various orders ranging from ordering production, to punitive damages, to ordering that an independent third party complete a new pay equity plan.

4After I reviewed the application and the response, I want to make note of items at the outset of this proceeding to ensure that this application proceeds as efficiently and expeditiously as possible, and to manage some of the parties’ expectations about how this proceeding will be conducted.

5First, the applicants seek the Tribunal to award $45,000.00 in punitive damages. Punitive damages are not awarded by the Tribunal in applications where the Tribunal could compensate lost earnings with an order and applying the appropriate interest rate such as in the instant case. I question whether the Tribunal has any jurisdiction to order punitive damages as section 25(2) of the Act is clear as to the scope of the Tribunal’s remedial powers. That section clearly refers to its jurisdiction to remedy violations of the Act through compensation not punitive damages. The Act does contemplate fines in certain circumstances under section 26 of the Act, but those situations are not present in this case, and fines serve a different purpose than punitive damage awards.

6Second, a hearing before the Tribunal is a de novo hearing. The applicants have exercised their right to have this matter heard by the Tribunal. A de novo hearing means that the Tribunal hears all the evidence “at first instance” and determines whether the Act has been complied with or not. An application before the Tribunal is not an appeal of the Review Officer’s order whereas the Tribunal examines the Review Officer’s decision and his decision-making process as to whether it is reasonable or not. Rather, the Tribunal hears the evidence and decides whether the pay equity plan is compliant with the Act in consideration of the applicable legal principles. As such, the parties will have the full opportunity to present their evidence to the Tribunal in support of their positions. With respect to this, the applicants have requested several orders to produce documents relating to the process in how the plan was created as opposed to whether the plan is compliant with the Act or not.

7Documents that the applicants seek to rely upon should be requested to be produced from the respondent at the outset of the proceeding, in advance of the pre-hearing conference. To be clear, since this is a hearing de novo, documents that do not pertain to the issue of whether the pay equity plan is compliant with the Act may not be arguably relevant, but documents that pertain directly to the plan are clearly relevant, such as the gender-neutral comparison system that was used to evaluate the job classes.

8The applicants are directed to make their production requests to the respondent by no later than January 4, 2022. The respondent is directed to respond to the requests, including by identifying whether it objects to producing any category of documents or if a category of documents is not in its possession, by no later than January 25, 2022. Any dispute that remains will be addressed by the panel that presides over the Pre-Hearing Conference. If a category of document is known to be in the possession of a third party, and not in the possession of either the applicants or the respondent, notice of the Pre-Hearing Conference shall be provided to the third party so they can attend to address the production request.

9Third, the applicants have requested the Tribunal to order that an independent consultant prepare a new plan. I question whether the Tribunal has authority to do this as in the normal course, the Tribunal would, if the applicants are correct in their position that the pay equity plan is not compliant with the Act, have the evidence before it to order the pay equity plan to be revised in the manner it considers appropriate pursuant to section 25(2)(f) of the Act, and/or to order any compensation adjustments needed to achieve pay equity pursuant to section 25(2)(e) of the Act, and/or to direct the respondent to redo the plan pursuant to its directions and oversight.

10The Registrar is directed to set a pre-hearing conference to occur before March 1, 2022.

11I am not seized of this matter.