Pay Equity Hearings Tribunal
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: April 8, 2022
[1]. This is an application filed pursuant to section 24(5) of the Pay Equity Act, R.S.O. 1990, c.P.7 as amended ("the Act").
[2]. A second pre-consultation conference ("PCC") was held on April 8, 2022. The main objective of this PCC was to establish the process in which the parties will litigate this dispute.
[3]. At the outset of this decision, the Tribunal wishes to clarify what this case is about. In this case, the applicant has alleged that the pay equity plan posted by the respondent Township does not comply with the Act. The pay equity plan at issue is not a deemed approved plan and the applicant challenged the plan within the time set out in subsection 15(7) of the Act.
[4]. During the PCC, I explained that the Tribunal's hearings are de novo, meaning "at first instance". What this means is that the parties must present their evidence to the Tribunal and proceed as if the Review Officer had not already issued a decision. The Tribunal does not review the Review Officer's decisions and uphold them or overturn them for on a correctness or reasonableness standard, rather it decides the cases on the evidence presented before it.
[5]. The other important aspect of a de novo hearing is that the paramount consideration for the Tribunal is whether the pay equity plan complies with the Act. If the evidence demonstrates that the plan complies with the Act, then it follows that the plan complies with the Act and its purposes are met. However, if the evidence demonstrates that the pay equity plan does not comply with the Act, then the Tribunal will order the appropriate remedies to ensure that it comes into compliance with the Act. This is to say that issues such as allegations that the respondent did not comply with township by-laws, or that a law firm may be in a conflict of interest, are not overly relevant to the factual determination of whether the pay equity plan is compliant with the Act. Those types of complaints appear to be within the purview of an appropriate Ombudsman or Law Society if a complaint is made in those forums, but not something that the Tribunal considers relevant when the issue is before it is whether the pay equity plan is compliant with the Act. Again, either the evidence presented satisfies the Tribunal that the pay equity plan complies with Act, or it does not.
[6]. Lastly, the applicant's materials reference the Ontario Midwives v. Ontario (Health and Long-Term Care), 2020 HRTO 165 decision for the proposition that the Tribunal has ordered punitive or human rights damages for breaches of the Act. At the PCC, I identified for the parties that "the Tribunal" referred to in the Ontario Midwives, supra, case is the Human Rights Tribunal of Ontario, and not the Pay Equity Hearings Tribunal, and that there are many different factors that go into that Tribunal's remedial awards as compared to this Tribunal. The most obvious difference is that the Pay Equity Act, which gives this Tribunal its jurisdiction, contains no limitation period for how far back compensation can be ordered with interest. As such, parties should be cautious when relying on Human Rights Tribunal decisions as precedent before this Tribunal when attempting to seek remedies that there is no apparent statutory authority or Tribunal jurisprudence supporting the damages claim.
Production
[7]. At the PCC, the parties made their submissions about the applicant's outstanding production requests. After reviewing the categories of documents and considering the parties' submissions, the Tribunal directs the respondent to produce by no later than May 9, 2022:
- any correspondence that pertains to the pay equity plan between a respondent's official and the third party contractor that completed the pay equity plan; and
- the letter of engagement/terms of reference/contract that retained the third party contractor to complete the pay equity plan on the respondent's behalf.
[8]. Additionally, the categories of documents that pertain to the factors considered and the decision making process of how the job classes were evaluated will be attached to the witness statements as set out below.
[9]. If there becomes a question about whether additional categories of documents become relevant at a later date, the panel seized with the merits of this matter shall determine those issues.
Order of Proceedings
[10]. At the PCC, I suggested an order of proceeding. Each of the parties agreed with the process set out below:
[11]. By no later than July 8, 2022, the respondent shall file signed witness statements from each of its witnesses that it intends to call to demonstrate that the pay equity plan at issue is complaint with the Act. These witness statements shall have attached as Exhibits any documents that were relied upon or referenced in the witness statement. The applicant has also set out many of her challenges to the posted plan in her application and her submissions dated March 25, 2022 (which were directed by this panel's February 15, 2022 decision). The respondent should be mindful of the applicant's submissions when these witness statements are prepared. The witnesses shall adopt their signed witness statements as their direct evidence, and the applicant will then be permitted to cross-examine the witnesses on their evidence.
[12]. The panel seized with the merits of the case shall determine the manner and form in which the applicant presents her evidence once the respondent concludes its case.
Hearing dates
[13]. The parties are directed to consult with one another and, by no later than April 19, 2022, to provide the Registrar with no less than eight mutually available dates in the months of August, September and October 2022. The Registrar shall select three of those dates to schedule this matter, subject to the Tribunal's availability.
[14]. This panel is not seized.
"M. David Ross"
M. David Ross, Chair