Ontario Pay Equity Hearings Tribunal
PEHT Case No: 2001-18-PE
Glen Hill Terrace Christian Homes Inc., Applicant v Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110, Respondent v Pay Equity Office, Participating Nursing Homes, Ontario Public Services Employees Union, Attorney General on behalf of the Crown in Right of Ontario, Equal Pay Coalition and the Ontario Federation of Labour, Service Employees International Union, Local 1, Ontario Agencies Supporting Individuals with Special Needs, Ontario Long Term Care Association, and Ontario Nurses' Association, Intervenors
BEFORE: M. David Ross, Chair
DECISION OF THE TRIBUNAL: November 3, 2023
Decision
This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended ("the Act").
Section 4.2 of the Statutory Powers Procedure Act permits a single presiding officer to decide this procedural or interlocutory matter.
By decision dated September 15, 2023, the Tribunal responded to the Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110 ("CUPE") request for "the Tribunal to convene a case management meeting to address the nature and scope of the interventions, including issues regarding parameters for intervenors' proposed evidence, cross-examination of witnesses, written submissions, and oral argument". At paragraphs 7 and 8 of that decision, the Tribunal held:
In the May 19, 2023 decision, the Tribunal informed the parties that it would set out the next step of the process once the issue of the interventions was considered. However, by letter dated August 9, 2023, the respondent requested a case management meeting to be scheduled to address "the nature and scope of the interventions, including issues regarding parameters for intervenors' proposed evidence, cross-examination of witnesses, written submissions and oral argument".
As the respondent wishes the opportunity to make submissions prior to the Tribunal issuing further direction about the process, it will provide each of the parties with the opportunity to do so. However, it does not make procedural sense to the Tribunal attempt to find a mutually available date for all 11 of the parties and their counsel without having any knowledge of the submissions that the parties may wish to make at such a hearing.
The respondent requested reconsideration of the Tribunal's procedural decision set out in response of its own request. By decision dated October 12, 2023, the Tribunal sought submissions from the parties with respect to the respondent's request for reconsideration. The parties have filed their submissions in accordance with the Tribunal's directions.
After considering the submissions, the Tribunal will not reconsider its September 15, 2023, decision.
The submission schedule was issued in response to the respondent's request to hold a case management hearing to address the following issues: "the nature and scope of the interventions, including issues regarding parameters for intervenors' proposed evidence, cross-examination of witnesses, written submissions and oral argument".
This request was made in the face of the Tribunal's July 10, 2023 decision which explicitly said that the Tribunal would direct the next steps of the process once it had determined which entities would be grated intervenor status. At paragraph 10, the Tribunal held:
The Tribunal will consider any objections of the parties and responding submissions in due course. The Tribunal will then issue a decision setting out which persons or organizations will be granted intervention status and the next steps of the process.
The issue of the ensuring that the parties were ad idem about the scope of intervenors participation in this process was going to be one of those next steps.
In the Tribunal's view, it made no procedural sense to schedule a case management hearing to hear the parties' positions on the issues raised by the respondent without the other parties first knowing each others' positions. From experience, that would have simply resulted in convening a case management hearing (which would have been several months from the request due to finding a mutually available date for 11 parties and their counsel), and then setting a submissions schedule to address the issues. All that would have resulted in is the added delay of waiting for a case management hearing to convene. Instead, the Tribunal proceeded directly to receiving written submissions about the issues raised by the respondent. It is difficult to appreciate the respondent's position that the Tribunal's decision causes additional delay. It has not. Its decision has saved considerable time in the process in response to the respondent's request to make submissions on an issue that affects every intervenor in this matter.
The respondent cites Ontario Nurses' Association v. Women's College Hospital, 1989 CanLII 1460 (ON PEHT) for the principle that interventions must not delay the expeditious determination of the matter. This is a principle which the Tribunal considers at the time it considers whether an entity should be granted intervenor status, as it did in the above cited case.
In this case, no party objected to any of the intervenors who have been granted intervenor status. The Tribunal's July 10, 2023, decision expressly contemplated such objections and built-in a timeline to consider such objections. Once the intervenors had been granted intervenor status after no objections were received, the opportunity had passed to raise concerns about the reality that a submissions process takes a little longer than usual because every party must consider and respond to more sets of submissions than in the normal course, and the reality that hearing dates are not as available because it requires the coordination of 11 parties' availability.
The submission schedule set out in the September 15, 2023 decision is not unreasonably protracted. It considers the context of the proceedings in this case, including the fact that it covers the winter holiday break which is normally a time where the Tribunal historically receives extension requests because it is difficult to respond to materials and receive instructions during that period.
The Tribunal reiterates that the timeline set out in the September 15, 2023, decision is more expeditious than had the Tribunal simply scheduled a case management hearing as requested by the respondent. The parties in this proceeding must be mindful that making unilateral requests to the Tribunal about the substantive and procedural issues in this case will likely result in the Tribunal seeking submissions from all parties to ensure procedural fairness. Obviously, if the Tribunal is of a view that a request has been made simply for the purpose of delaying a decision on this matter, it will be addressed in a summary fashion. In this case, the issue of the scope of the interventions is an important issue that requires clarity between the parties to ensure an efficient process.
Lastly, the Tribunal has intentionally built in sufficient time in its September 15, 2023, decision for the parties to consider the issues and other parties' submissions, receive instructions, and file their submissions. Extensions will not be granted barring an extraordinary circumstance that persuades the Tribunal to grant an extension.
"M. David Ross"____
M. David Ross, Chair