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, and Members Patricia Greenside and Carol Phillips
DECISION OF THE TRIBUNAL: September 2, 2021
1These are applications under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”).
2By decision dated July 19, 2021, the Tribunal directed the parties to make submissions regarding how they propose to enter the evidence regarding how the Tribunal can consider whether the applicants’ job positions were evaluated in accordance with the Act. This direction was made because of the unfortunate reality of a significant period of delay and crucial evidence becoming lost or unavailable, namely the applicants’ job questionnaires and job descriptions that were used to evaluate their job classes in the early 2000s.
3The applicants proposed calling viva voce evidence about their job duties and calling supporting witnesses. The respondents also anticipate calling evidence but submit that the evidence be limited to where the applicant has disputed the ratings.
4In the Tribunal’s view, it is not clear to the Tribunal where the actual dispute lies between the parties about how the job classes were rated. Clearly, the applicants believe they should have been rated in the higher wage band, and the respondent believes they have been rated properly. However, based on the parties’ pleadings and without a job questionnaire or job description that forms the basis of the job evaluation, the Tribunal cannot discern what evidence is necessary for it to hear to resolve their disputes. It is not an efficient use of the Tribunal’s resources to start from scratch and hear the totality of the evidence about the applicants’ job descriptions and job duties and all of the same evidence about the job classes surrounding the applicants’ job classes, especially if the actual disputes is limited to a few disagreements. Simply, hearing this evidence would take years to complete and the Tribunal is not interested in engaging in a process that will add to the delay where it can engage a process to focus the evidence to the actual disputes between them.
5Before the Tribunal starts to hear viva voce evidence from the parties’ witnesses, the Tribunal directs the parties to identify where the disputes between them are. In the Tribunal’s view the clear way to achieve this objective is to have the applicant’s job description re‑drafted and re-evaluated. Once this process is completed, it should be obvious where the disputes are between the parties, and what evidence is needed to be called. It may even be that after this process is completed, that these applications are resolved between them.
6The parties are all sophisticated in pay equity matters and their counsel are very capable and experienced. The Tribunal sees no reason why the parties will be unable to cooperate and resolve these job descriptions and evaluations pursuant to the process and timeline set out below.
7The Tribunal directs the applicants, by no later than September 20, 2021, to provide the respondent with draft job descriptions that they understand reflect their job duties that would be evaluated by the gender-neutral comparison system.
8The respondent shall have until October 12, 2021, to review these draft job descriptions and set out what they agree to, what they do not agree to, and what they propose to be included, and provide it to the applicants.
9The applicants shall have until October 21, 2021 to review the respondent’s response, to identify what they agree to, and what they do not agree to. The parties shall then prepare a job description for each of the two classifications which sets out what has been agreed to, and what has not been agreed to. It may assist the parties to use a three columned format that sets out agreed to language, and where there are disagreements, a column for the applicants’ position and another for the respondent’s position. The parties shall file these documents with the Tribunal by October 25, 2021.
10On the next day of hearing, the parties and the Tribunal will review these materials, and determine where the disputes between them exist, if any. This will include whether there are material differences to the job descriptions or how the job descriptions should be evaluated using the respondent’s job evaluation tool. From there, the parties and the Tribunal can determine what evidence is needed to be heard in order for the Tribunal to determine these applications and the process for receiving any such evidence.
Dated at this 2nd day of September, 2021.
"M. David Ross" Chair
“I concur” "Patricia Greenside" Member
“I concur” "Carol Phillips" Member