Pay Equity Hearings Tribunal
PEHT Case No: 1549-22-PE
Ontario Public Service Employees Union/Syndicat des Employés de la Fonction Publique de l’Ontario, Local 214, Applicant v Edgewater Gardens Long Term Care Centre, and Haldimand War Memorial Hospital, Respondents
Before: M. David Ross, Chair
Decision of the Tribunal: December 6, 2022
1This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7 as amended (“the Act”).
2Section 4.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, permits a panel of one to determine this issue.
3In this application, the applicant asserts that the respondents constitute a single employer for the purposes of the Act, and as such, pay equity has not been established. In the alternative, the applicant asserts that Edgewater Gardens Long Term Care Centre is a Part II employer or should be declared a seeking employer pursuant to Part III.2 of the Act.
4The applicant has raised an issue with respect to the Charter of Rights and Freedoms. The respondent has raised that a Notice of Constitutional Question has not been filed in this matter. Rule 48 of the Tribunal’s Rules of Practice requires a Notice of Constitutional Question to be filed and delivered “as soon as the circumstances giving rise to the Notice become known”. The circumstances are obviously known, and as such, the applicant should have filed a Notice of Constitutional Question by now. The applicant shall have until December 13, 2022 to file and deliver the Notice of Constitutional Question if it wishes to pursue that argument. If the Notice of Constitution Question is not filed pursuant to this direction, this applicant will not be entitled to pursue this argument in this application.
5The respondents have raised preliminary objections to the application. They have asserted that the application is premature, and issues have been raised in the application that were not before Review Services. The respondents have also requested the Tribunal to dismiss the application because of an abuse of process caused by delay.
6The Tribunal has reviewed the materials filed in this case with respect to these preliminary issues. Given the ongoing nature of the issues raised in the application, this is not an appropriate case to dismiss the application in its entirety due to delay as a preliminary issue. The respondents will be permitted to present evidence and make submissions about the effect of delay and the alleged prejudice that delay has caused, but the merits of those arguments will be determined by the Tribunal in conjunction with the hearing on the merits.
7The Tribunal will also not curtail the application based on the respondents’ position that the application raises issues that were not argued before Review Services, or that those issues were presented more narrowly than as set out in the application.
8The Act provides an extremely broad jurisdiction to the Tribunal. Section 30(1) of the Act states:
The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes
9Hearings before the Tribunal are de novo. The respondents are correct that the Tribunal does not typically take jurisdiction over matters that Review Services has not had the opportunity to address. However, this is different than when a party asserts it did not have an appropriate opportunity to provide evidence or make submissions to the Review Officer on an issue that was addressed in the Order or Notice of Decision. In this case, the applicant has raised issues that are clearly addressed by Review Services in the Order. The nature of a de novo hearing is that any alleged unfairness can be remedied by the right to present all of their evidence and make any submissions that they wish the Tribunal to consider with regards to any such issues. The instant case is not one where the Tribunal will decline jurisdiction over the issues raised in the application, as the Tribunal is not persuaded that the applicant has attempted take an issue directly to the Tribunal which Review Services has not had the opportunity to address or consider.
10The Registrar is directed to schedule a Pre-Hearing Conference to occur between January 16, 2023 and February 27, 2023.
“M. David Ross”
M. David Ross, Chair