Pay Equity Hearings Tribunal
PEHT Case No: 2754-20-PE
Sandra Kendall, Applicant v Sinai Health System, Respondent
BEFORE: M. David Ross, Chair
APPEARANCES: Thomas McRae, Adam Lawson and Sandra Kendall appearing on behalf of the applicant; Carolyn Kay, Jordan Simon and Barb Griffin appearing on behalf of Mount Sinai.
DECISION OF THE TRIBUNAL: June 13, 2022
This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended ("the Act").
This matter came before the Tribunal on June 10, 2022. At the outset of the hearing date, the parties agreed to allow me to attempt to resolve the matters between them. The parties were unable to reach an agreement and the parties made their opening statements and made submissions regarding production and newly raised issues.
During the opening statement, the applicant asserted that the respondent's original pay equity plan that was deemed approved in the early 1990's was not compliant with the Act. This argument, and the particulars that the applicant relies upon were not included in the application or raised with Review Services. The respondent objected to this position proceeding before the Tribunal because it was not raised with Review Services, not pled in the application, and it is prejudicial to allow this to proceed given that approximately 30 years have passed since that pay equity plan was deemed approved pursuant to the Act.
The applicant asserts that the 1990 Plan was not compliant with the Act because the respondent cannot confirm what male comparator was used with respect to the applicant's job class. The applicant asserts that the 1993 amendments required that the respondent use the proportional value method and that was never done, so the 1990 plan cannot be in compliance with the Act.
The Tribunal does not take jurisdiction over issues that have not been raised with Review Services. At paragraph 30 of Brockville General Hospital, 2019 CanLII 113536 (ON PEHT), the Tribunal reiterated this principle:
It is well-established that the Tribunal only has jurisdiction to consider issues that were raised in the application to review services that gave rise to this application. While hearings before the Tribunal are de novo (which means "a new trial" or "from the beginning"), the Tribunal does not assume jurisdiction over issues that the Pay Equity Commission Review Services did not have the opportunity to consider. Paragraph 12 of Villa Colombo Homes for the Aged Inc., 1997 CanLII 12230 (ON PEHT) states:
- In either of the above circumstances, the Act envisages and confers on the Tribunal the jurisdiction to adjudicate the matter only after a Review Officer has investigated and attempted to settle it. In previous decisions the Tribunal has stated repeatedly that it will not allow parties to make an "end run" around the Review Services process by bringing directly to the Tribunal for adjudication an issue that was not raised at Review Services (see Scarborough (No.1) (1994) 5 P.E.R. 45, at para. 17). Similarly, the Tribunal has said that it will not allow parties to "short circuit" the Review Services process by bringing a matter to the Tribunal for adjudication before the Review Services process has been exhausted (See Thunder Bay Family and Children's Services (1990), 2 P.E.R. 27, at para. 10 and 14, and Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50, at para. 9). Whether the Review Services process has been exhausted is a determination the Tribunal makes having regard to: whether an order has been issued; the length of time the matter was at Review Services; the number of meetings that have occurred with respect to it; and what the Review Officer may have indicated about his or her intention to make an order or referral (See Haldimand Norfolk (No.1) (1989), 1 P.E.R. 1, at para. 37; St. Michael's Hospital (No.2) (1991), 2 P.E.R. 187, at para. 22 ff.; and St. Joseph's Villa (1993), 4 P.E.R. 33, at para. 2).
[emphasis added]
Accordingly, since the issue about the validity of the 1990 plan was raised by the applicant on June 10, 2022, and it was admitted that this issue has not been raised at any time before that hearing date, including before Review Services or in the pleadings, the Tribunal will not permit the applicant to pursue that allegation in this application as it does not have jurisdiction to entertain it.
With respect to the production request, the Tribunal mostly agrees with the respondent's positions with regards to the scope of the requests being overbroad, or irrelevant, especially given that the Tribunal will not hear evidence about whether the 1990 plan was compliant with the Act.
Furthermore, the Tribunal is concerned about the timing of the request. On July 2, 2021, the parties entered into a pre-hearing memorandum of agreement that set out the terms of how they agreed to litigate this matter.
At this time, neither the applicant nor the respondent intend to raise any preliminary issues before the panel of the Pay Equity Hearings Tribunal assigned to the hearing of this matter. There may nonetheless be an issue with respect to the scope of the documents to be produced by the responding party to the applicant pursuant to its request for documents from the responding party dated June 21, 2021 and the responding party's response dated June 30, 2021. To the extent that the applicant wishes to seek a production order, it shall do in writing to the Tribunal (copied to the responding party) by July 16, 2021. The responding party agrees to file with the Tribunal (copied to the applicant) any submissions it wishes to make in response by July 30, 2021 and the applicant agrees to file with the Tribunal (copied to the responding party) any reply submissions it wishes to make by August 20, 2021.
The Tribunal received the applicant's request on June 3, 2022, or 11 months after the deadline she agreed to request a production order from the Tribunal. The production dispute was before the parties and contemplated when they signed the memorandum.
When I asked the applicant why she waited until the week of the hearing to make this production request when there was a clear timeline that they agreed to, the applicant's response was that they did not recognize on July 2, 2021 that they were going to raise new issues, and did not realize that these documents were necessary until they started preparing for the June 10, 2022 hearing date. The applicant also asserted that the Tribunal's Rules permit it to order production at anytime before or during the hearing. This is not an acceptable reason for the delay.
The Tribunal holds parties to their agreements, especially when they were made during the Tribunal's Pre-Hearing Consultation process and signed off by the parties. In Huron Lodge Community Service Board Inc, 2021 CanLII 115304 (ON PEHT), the Tribunal held at paragraph 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.
(emphasis added)
Pay equity issues take time to resolve, and in most circumstances, a lot of time. They are also relatively document heavy, and many of the documents can be decades old, or otherwise not easily located. From the Tribunal's perspective, at best, waiting until the week of a hearing to ensure that a party has the documents that they require can only cause the proceeding to be unnecessarily delayed, and unnecessary delay only works against the goals of the Act, which is to redress systemic discrimination in compensation for work performed in female job classes.
Nonetheless, the Tribunal reviewed each of the categories of documents requested by the applicant with the parties.
The respondent confirmed that it has provided the applicant with the requested documents pertaining to the applicant's job class and the male comparators in the same band.
With respect to requests #1, 2, and 3, the Tribunal finds that the request is excessive and overbroad. Furthermore, documents that are sought for the purposes of challenging the 1990 plan are irrelevant for the reasons set out above.
It is not the role of the Tribunal to consider an excessive and overbroad request and pare it down to only the categories of documents which the Tribunal would direct to produce. This would only serve to encourage excessive requests and fishing expeditions. Especially given that the applicant did not comply with her own agreement regarding the timeline on when these production requests ought to have been made, the Tribunal will make no orders with respect to these categories of documents that have not already been produced.
With respect to request #7, the respondent has no obligation to produce its submissions to Review Services. This is different than the documents that were provided to Review Services and reviewed to in the order. The respondent confirmed that it will provide the documents listed in the order which it provided to the Review Officer. The respondent shall have until July 5, 2022 to produce those documents.
With respect to request #8, the Tribunal will not order the respondent to produce the budget shortfall at this time. However, if the respondent seeks to call witnesses to testify that budgetary reasons were a reason for why it terminated the applicant, it may be directed to produce this document at a later date.
With respect to request #9, the respondent has confirmed that it has provided a list of the job classes and relevant information with respect to individuals who have left the organization involuntarily. The Tribunal finds that the names of these individuals are not arguably relevant in this dispute.
If during the hearing, it becomes apparent that a document that has not been produced and has not been ordered is relevant to the issues in dispute, the Tribunal can order that document to be produced pursuant to Rule 61 of the Rules of Practice at that time, in context of when the request is made.
The next hearing date is set for July 13, 2022. The applicant will call her first witness at the outset of that hearing date.
"M. David Ross"____
M. David Ross, Chair