PEHT Case No: 0165-21-PE
Ontario Secondary School Teachers' Federation, District 17, Applicant v Simcoe Muskoka Catholic District School Board, Respondent
BEFORE: M. David Ross, Chair
APPEARANCES: Susan Ursel and Nicole Paroyan appearing on behalf of the applicant; Craig Lawrence appearing on behalf of the respondent
DECISION OF THE TRIBUNAL: June 9, 2023
This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7 as amended (“the Act”).
In this application, the applicant seeks review of a Review Officer’s Order dated November 20, 2020 (“the Order”). The Order was issued following the Tribunal’s direction that a Review Officer prepare the parties’ pay equity plan in its decision dated December 17, 2018 (Simcoe Muskoka Catholic District School Board, 2018 CanLII 123879 (ON PEHT)) which was confirmed in its decision dated June 21, 2019 (Simcoe Muskoka Catholic District School Board, 2019 CanLII 59019 (ON PEHT)).
In the December 17, 2018 decision, the Tribunal (differently constituted) found that the respondent had not negotiated an amendment to the play equity plans with the applicant in good faith and in violation of the Act. The Tribunal considered the parties’ submissions regarding the remedies. At paragraphs 138 to 140 of that decision, the Tribunal held:
For the reasons stated earlier in this decision, the Tribunal declares that the Board violated its duty to bargain in good faith and to endeavour to reach an agreement to amend the pay equity plans with OSSTF. The Tribunal is prepared to provide further remedial relief (described below) in order to facilitate the resumption of negotiations between the parties and to ameliorate the Board’s failure to bargain in good faith. In my view, however, it is not appropriate for the Tribunal to direct the result of those negotiations, as OSSTF effectively requests in the orders it seeks. Rather the parties should finish what they started, pursuant to the process to which they agreed they would be bound.
To that end, the Tribunal orders the parties forthwith to resume their negotiations pursuant to the Terms of Reference applicable to each unit, based upon the final ratings determined by the respective JJECs. The Board is not entitled to raise any process concerns relating to the conduct of the JJECs in the course of these resumed negotiations. Moreover, in the endeavour to reach agreement on the appropriate male comparators for the amended pay equity plans, the Board is not entitled, absent a rationale that does not run afoul of its obligations under the Act, to bargain to impasse maintaining the same percentage thresholds in respect of the new male comparators that were negotiated for the former male comparators in the 2000 pay equity plans.
The parties shall have until January 31, 2019 (or such other period as they may mutually agree) to reach agreement on amended pay equity plans for the two bargaining units. If the parties are unable to reach agreement within the prescribed period, the Tribunal, pursuant to subsection 25(1) (a) of the Act, orders that a Review Officer prepare amended pay equity plans for the Board’s establishment. Since I have found that the Board bears responsibility for having de-railed the negotiations in 2010, I order the Board to pay all of the costs of preparing the amended plans, including any costs as a result of the Review Officer retaining the services of such experts as he or she considers necessary to assist in the preparation of the amended plans.
The statutory authority for the Tribunal’s direction that a Review Officer must complete the pay equity plan is contained at subsection 25(2) (a) of the Act. Section 25(2)(a) of the Act states:
where it finds that an employer or a bargaining agent has failed to comply with Part II or III.1, may order that a review officer prepare a pay equity plan for the employer’s establishment and that the employer and the bargaining agent, if any, or either of them, pay all of the costs of preparing the plan;
The June 21, 2019 decision addresses the applicant’s request for reconsideration of the December 17, 2021 decision. In its request for reconsideration, the applicant sought an order to substitute the remedies ordered by the Tribunal with the remedies originally sought by the applicant. The Tribunal did not reconsider its June 21, 2019 decision. In upholding its original decision, the Tribunal held at paragraphs 14 and 15:
Moreover, as noted above, the Tribunal in this case already considered the possibility that the negotiations may not lead to agreed amended pay equity plans and, to that end, had fashioned a remedy to address that possibility. In other words, if negotiations were successful, the parties could agree on amended pay equity plans. If the negotiations were unsuccessful, a Review Officer would be appointed to oversee the development of amended pay equity plans. The Tribunal has, in its Decision, covered both possibilities. Regardless of which scenario arose after the Decision was issued, the result will be that a pay equity plan will be prepared. In contrast, the decision in Haldimand-Norfolk (No. 7) had not addressed the possibility that the parties' negotiations could be unsuccessful. As a result, it was determined that the original decision should not stand because it was of no effect and provided no viable remedy.
In the Decision, the Tribunal anticipated the possibility that the parties would fail to reach agreement on amended pay equity plans. That is precisely why the Tribunal fashioned an alternative remedy consisting of the order with respect to the appointment of a Review Officer. OSSTF does not explain in its request for reconsideration why the Tribunal’s alternative remedy is not up to the task of achieving what the parties themselves are unable to achieve in bargaining.
The parties met several times to resume negotiations as directed by the Tribunal. There is no suggestion that these efforts were not done in good faith. However, the parties were unable to conclude the pay equity plan by the deadline set out in the December 17, 2018 decision.
Accordingly, as per the Tribunal’s direction in the December 17, 2018 decision, a Review Officer prepared the plan pursuant to section 24(2) (a) of the Act.
It is important to note that the Tribunal declined to order any remedies that specified any terms of the pay equity plan as sought by the applicant. The Tribunal also made no findings as to what the terms of the pay equity plan must contain to be compliant with the Act as that issue was not before the Tribunal.
The parties agreed pursuant to a prehearing conference memorandum dated February 7, 2020, that the responding party could raise preliminary “threshold” issues to the Tribunal. The hearing date for these issues was June 6, 2023.
The respondent requested the Tribunal to decide as a preliminary matter whether the Review Officer’s discretion in preparing the pay equity plan was fettered by the Tribunal’s December 21, 2018 and/or June 21, 2019 decisions. The respondent submitted that it was not. The applicant submitted that it was, and the Review Officer acted outside of their jurisdiction when she prepared the plan and issued the November 20, 2020 order. The respondent requested the Tribunal to strike paragraphs 120 - 123 of the applicant’s application if it was found correct in its position.
The parties filed written submissions in advance of the hearing date held on June 6, 2023. The Tribunal has considered all of the material filed along with the parties’ oral submissions that were made during the June 6, 2023 hearing date.
Summary of the Parties’ Positions
The respondent submitted that nothing in the Tribunal’s decisions fettered or otherwise limited the Review Officer’s discretion about how it prepared the plan. The applicant submitted that the Tribunal could have imposed terms that guided the Review Officer in how they must have prepared the plan, as the Tribunal has done in previous cases.
The respondent submitted that the applicant is attempting to have the Tribunal impose the remedies that it sought in both the December 17, 2018 and June 21, 2019 decisions which were considered and rejected by the Tribunal. The applicant submitted that making another attempt at having its remedies imposed by the Tribunal is inappropriate and constitutes a collateral attack on the Tribunal’s previous decisions which had already considered and declined to order those remedies.
The respondent relied on the following cases in support of its position: Regional Municipality of Haldimand-Norfolk, (1992 CanLII 4705); The Women’s Christian Association of London, Operator of Parkwood Hospital, (1995 CanLII 7032); and Sexual Assault Support Centre of Ottawa, (2016 CanLII 2887).
The applicant submitted that the decisions of the Tribunal are final and binding for all purposes, and the Review Officer did not have the jurisdiction to ignore the factual findings made by the Tribunal in the December 17, 2018 and June 21, 2019 decision. The applicant submitted that the Review Officer erred when she determined that the decisions contained no findings of fact that were binding on her which imposed parameters and requirements with respect to the task that was assigned to her by the Tribunal.
The applicant also submitted that the doctrine of res judicata applied in this case as these issues have already been litigated between the parties.
The applicant submitted that the Review Officer was obligated to accept the following findings in the December 17, 2018 decision:
the finding that the respondent did not bargain in good faith when it did not accept the ratings of the JJECs;
that the parties were ordered to resume negotiations pursuant to the TOR and based on the final ratings;
the parties were to finish the process they started;
the retroactivity date was to be to September 1, 2001; and
That the consideration of cost savings was not a permissible way to by-pass statutory obligations.
The applicant also submitted that there was no finding made by the Tribunal that pay equity had been maintained up to December 17, 2018.
The applicant relied on the following cases in support of its position: Humber CAAT, [2000] OPED No. 5 (June 20, 2000); Mississauga Hydro Electric Commission, [1992] 3 PER 28; Grdic v. The Queen, [1985] 1 SCR; Toronto (City), 2003 SCC 63; and Ainsworth Technologies, 2001 SCC 44.
Decision and Analysis
Issue Estoppel
- The first criterion for issue estoppel is that the same issues must be before the Tribunal in this proceeding that have been decided in a previous proceeding. The four issues that the Tribunal decided in the December 17, 2018 decision were:
a) were there changed circumstances that rendered the existing pay equity plan inappropriate?
b) whether the respondent violated its duty to negotiate a pay equity plan in good faith?
c) had the respondent failed to maintain pay equity? And
d) the appropriate remedy.
The Tribunal agrees with the applicant that section 30(1) of the Act states that its decisions are final and binding for all purposes. The respondent did not dispute this proposition either. However, in this case, the Tribunal does not agree that there is a corollary between the findings made in the December 17, 2018 decision, and the Review Officer’s discretion or jurisdiction to complete the pay equity plan for the parties as suggested by the applicant. It may be that some of those statements contained in the December 17, 2018 decision are relied upon by the parties as evidence in support of their respective positions about whether the Review Officer’s plan complies with the Act, but those findings are not directions to the Review Officer that fettered her jurisdiction or otherwise invoke the doctrine of issue estoppel.
This case is an objection to the pay equity plan prepared by the Review Officer pursuant to section 25(4) (d) of the Act. The applicant also challenges other conclusions made by the Review Officer in her Order dated November 20, 2020 that are interconnected with the reasons why the applicant objects to the plan. As such, the issues before this Tribunal are not the same issues that were before the Tribunal in the December 17, 2018 decision. Accordingly, the first requirement for the doctrine of issue estoppel to apply, that the issues before the Tribunal are the same as they were in December 2018, has not been met.
The applicant argued that there was no affirmation by the Tribunal in the December 17, 2018, decision that pay equity had been maintained by the respondent. The relevant paragraphs that reference maintenance in the December 17, 2018 decision are found at paragraphs 133 and 134:
To the extent that OSSTF says the Board breached its duty to maintain pay equity by failing to address changes in the job content of female job classes in the EA and O/C bargaining units, that allegation raises a substantive issue that, in my view, was not placed before the Review Officer and was not addressed by the Review Officer in the Notice of Decision issued in either of these matters. I have reviewed the Notice of Decision that was issued for the EA unit and for the O/C unit, and it is apparent from the content of those documents that the Review Officer did not turn her mind to the issue of changed job content in her assessment of the Board’s obligation to maintain pay equity. Moreover, there is no evidence before me that OSSTF raised this issue squarely with the Review Officer. Indeed, in her final reply submissions of June 19, 2018, OSSTF conceded that “[t]he Board is correct that these [job content changes] were not fully canvassed before the Officer, and we have accordingly not made much of them in argument.” Accordingly, while there may well be pay equity maintenance issues arising from changes in the job duties of female job classes (or the introduction of a new classification in both the EA and the O/C units) those issues have not yet been the subject of investigation and mediation by Review Services, and are not properly before the Tribunal at this point in these proceedings.
There was no evidence adduced in the hearing concerning the development of a wage gap between the female job classes in either the EA or the O/C bargaining units and their male comparators in the PM unit since the posting of the EA and O/C pay equity plans in 2000. That appears to be because across-the-board wage increases resulting from collective bargaining over the years since 2000 have not varied from one bargaining unit to another. Thus, given the terms of the original pay equity plans, it cannot be said that the female job classes have lost ground in compensation vis-à-vis the male comparators, at least until the parties reach agreement on the new male comparators. Then there may well be obvious measures that the Board will have to consider in order to meet its statutory duty under subsection 7(1) of the Act. That remains to be seen. At this point in time, however, the Tribunal is left to conclude that, based on the information before it, the Board has not breached its duty to maintain compensation practices that provide for pay equity.
The applicant is correct that the Tribunal did not make a final determination that pay equity had been maintained as this issue was not before the Review Officer, and the male comparators had to be agreed to before this issue could be determined. However, the Tribunal also did not conclude that pay equity had not been maintained. Rather, the Tribunal found that the fact that only across the board wage increases provided during the intervening period suggested that pay equity was maintained subject to evidence demonstrating that different male comparators should be used which would affect this issue. Nothing in the December 17, 2018 decision limited the Review Officer’s discretion or jurisdiction regarding pay equity maintenance. Not only was it appropriate for the Review Officer to review this issue but required. The applicant may disagree with the Review Officer’s conclusions and will have the opportunity to explain to the Tribunal why it believes that those conclusions are inconsistent with the requirements of the Act, but this is not an issue where the Review Officer exceeded her jurisdiction when she considered when the effective date of the plan should commence.
Lastly, the finding that the respondent did not negotiate in good faith by refusing to accept the JJEC ratings does not permeate into this application. That dispute was litigated and decided. The Tribunal considered the remedies that were requested and made its orders after considering those submissions. The Tribunal imposed parameters around what positions the respondent cannot take during the resumption of negotiations and ordered that the respondent pay for the preparation of the Review Officer’s pay equity plan. There is no suggestion in the partial agreed statement of facts that the respondent continued to negotiate in bad faith after the December 17, 2018 decision was issued or ignored the Tribunal’s directions to it. Accordingly, that issue has been finally dealt with, and there is no basis to continue to penalize the respondent for their failure to negotiate in good faith, as that would amount to “double jeopardy”. The Tribunal provided the parties with a clean slate and directions to the respondent about what positions it could and could not take during the subsequent negotiations. Unfortunately, the parties were unable to conclude the pay equity plan, and therefore, the process was turned over to the Review Officer pursuant to the December 17, 2018 decision.
Was the Review Officer’s Direction Fettered by the Process that was Started by the Parties?
Fundamentally, the applicant’s argument is that the Review Officer did not have a carte blanche to create a new pay equity plan but was bound by agreements that the parties had already reached during their negotiations, including the Terms of Reference. The applicant relies on the Tribunal setting out the process and noting that the parties had entered into an agreed statement of facts in the December 17, 2018 decision as findings that fettered the Review Officer’s discretion. The applicant also submitted that the Tribunal’s direction that the parties resume the process that they had started also applied to the Review Officer, and therefore, the Review Officer was obligated to “step into the shoes of the parties” when she completed their pay equity plan.
The Tribunal does not agree with this submission. The December 17, 2018 decision is clear and unambiguous in that it makes separate directions to the parties, and then to the Review Officer if the parties were unable to complete their plan by the deadline. In paragraph 139 of the December 17, 2018 decision, the Tribunal directed the parties to resume negotiations and imposed restrictions on the parties, specifically the respondent, about which positions it could take during the resumed negotiations.
Paragraph 140 of that decision then sets out that if the parties are unable to reach an agreement by January 31, 2019, that a Review Officer shall prepare the plan. The Tribunal also held in that paragraph that since it was the respondent that derailed the negotiations, it would have to pay the cost of preparing the plan. However, the Tribunal did not impose a single stipulation about how the Review Officer was required to complete the plan.
If the Tribunal wanted to fetter the Review Officer’s discretion about how that plan was to be completed, it needed to have used clear and unambiguous language. An example of when the Tribunal provided parameters to a Review Officer about how they must complete the plan is found in the Regional Municipality of Haldimand-Norfolk, supra. In that decision, the Tribunal held:
Subsection 25(2)(a) is part of the Tribunal's remedial authority. Essentially it has two components, first, it is directory in ensuring a plan is prepared. Second, it addresses the allocation of cost of the preparation, an issue we will address in our discussion of compensatory damages. The first component of subsection 25(2)(a) provides that where the Tribunal finds an employer or bargaining agent has failed to comply with Part II of the Act, the Tribunal may order an officer to prepare a pay equity plan. It is directory in that it is designed to allow the Tribunal to meet the objectives of the Act to achieve pay equity, by directing a review officer to prepare and post a pay equity plan expeditiously. In this case, we recognize the need to put a pay equity plan in place. It is now more than two years after the mandatory posting date and the Employer has not complied with Part II of the Act. In our view, subsection 25(2)(a) is crafted for just such circumstances, and we are ordering the officer to prepare a pay equity plan for the nurses in this establishment. In light of the evidence that ONA led with respect to its proposed gender-neutral comparison system, the Tribunal finds that it is appropriate for the review officer to commence with this system. Given that ONA did not have access to sufficient information on the male job classes, we are ordering that the review officer pilot test the comparison system using the services of the system's designers. We are then directing the review officer to consult with ONA to make appropriate modifications following the testing. The review officer will then be able to proceed to assess the modified comparison system for its gender neutrality and its appropriateness for these bargaining units. Finally, the officer will prepare the pay equity plan for the ONA nurses in this establishment.
(emphasis added)
An order under section 25(2) (a) of the Act is not made lightly by the Tribunal. The decision to direct a Review Officer to prepare the parties’ pay equity plan removes the rights and obligations of completing such plan from the parties and places those rights and obligations onto a Review Officer.
The findings in Regional Municipality of Haldimand-Norfolk, supra, are similar to the December 17, 2018 decision in that in both cases the employer was found to have not negotiated the plan in good faith, that a Review Officer was directed to prepare the plan, and that the employer had to pay the cost of preparing that plan. In that decision, the Tribunal highlighted the significance of a direction that a Review Officer prepare a plan is that both the employer and union forfeit their rights to negotiate the plan. In the Regional Municipality of Haldimand-Norfolk, supra, decision, the Tribunal also makes it clear that it in no way was fettering the Review Officer’s discretion to order what she or he thinks meets the requirements of the Act:
This provides a helpful guideline. In this case, we find that the Employer's breach of its obligation to negotiate in good faith and its continuing breach of the Tribunal's order has a further consequence or loss for ONA. One consequence of directing a review officer to prepare the plan for the employees in these bargaining units, because of the Employer's breach, is that not only does the Employer forfeit the right to negotiate the plan, but ONA also loses that right. Subsection 25(4)(c) states that the officer shall perform the duties of both the employer and the bargaining agent in preparing the plan. This is a loss of bargaining opportunity to craft a pay equity plan in which ONA could best represent the interests of its members in complying with the statute. In our view, we have given the fullest recognition to the extensive amount of work that ONA has undertaken in design of the comparison system by ordering the review officer to commence with the ONA modified system. We wish to make it clear that the Tribunal is not fettering the review officer's discretion to order what she or he thinks meets the requirements of the Act. Thus ONA now suffers the loss of any opportunity to negotiate a pay equity plan because of the Employer's breach. In our view, subsection 25(2)(a) is crafted with precisely such a situation in mind. We find that the only fair and reasonable compensation to ONA is to direct that the Regional Municipality pay all the costs of development and implementation of the pay equity plan as ordered by the review officer.
(emphasis added)
Obviously, the pay equity plan (or amendment of a plan) prepared by the Review Officer must be compliant with the Act. That is the only statutory requirement imposed on Review Officers when the Tribunal makes an order under section 25(2) (a) of the Act. There is no other requirement in the Act that fetters a Review Officer’s discretion about how such a plan is prepared. In the instant case, there are no other restrictions imposed on the Review Officer in the December 17, 2018 does not impose any further restrictions on the Review Officer in the instant case.
The Tribunal does not agree that it was a requirement for a Review Officer to “step into the shoes” of the parties and pick up where they left off in their negotiations. A Review Officer is not bound to agreements reached between the parties, or the process they agreed to. The parties had the opportunity to conclude their own negotiations using their processes but failed to complete it. For whatever reason, that process did not work. It may be that a Review Officer relies heavily on the progress made between the parties and seeks input from the parties about how the plan should be completed. However, it is equally within a Review Officer’s discretion to prepare a pay equity plan from scratch so long as it complies with the Act.
The Tribunal also finds that the Review Officer did not exceed her jurisdiction when she considered the issues of the retroactivity date or newly created or changed job. Conversely, the Tribunal finds that she was required to do so to comply with the purpose of the Act and there was no error when the Review Officer decided to make the plan as current as possible. Two decades had passed since the parties agreed that they needed to amend their plan. Again, the Tribunal understands that the applicant disputes the Review Officer’s conclusions on these issues, but that does not affect the Review Officer’s discretion to consider those issues.
The Review Officer’s plan is subject to the statutory right of either party to object to the plan prepared by the Review Officer pursuant to subsection 25(4) (d) of the Act. This is the statutory safeguard available to parties so they can ensure that the Review Officer’s plan is compliant with the Act. Subsection 25(4)(d) of the Act states:
when the review officer posts the plan in the workplace as subsection 14 (4) or 15 (6) provides, the employer, the bargaining agent (if the plan relates to a bargaining unit), or any employee or group of employees to whom the plan applies (if the plan does not relate to a bargaining unit) may file an objection with the Hearings Tribunal;
- Again, it is obvious to the Tribunal that the applicant does not agree with the Review Officer’s conclusions on several aspects of the pay equity plan she prepared. However, much of the applicant’s submissions during the June 6, 2023 hearing date focused more on why the applicant believes that the Review Officer’s plan does not comply with the Act, which will be addressed during the next step of this hearing. The applicant has not lost the right or opportunity to object to that plan and present evidence to the Tribunal about why the Review Officer’s plan should be amended or set aside to ensure that the plan complies with the Act.
Conclusion and Disposition
The Tribunal finds that its December 17, 2018 and June 21, 2019 decisions did not fetter the discretion of the Review Officer in how she must prepare the pay equity plan.
The Tribunal does not find it necessary to strike paragraphs from the application. This decision should be clear in how it affects the scope of the disputes between the parties based on how the disputes are framed in the application and the response. If either party is unclear on this issue, they may seek direction from the Tribunal.
Next Steps
The next step of this proceeding is for the applicant to present its evidence about why it believes that the Review Officer’s plan and her November 20, 2020 Order do not comply with the Act.
The applicant shall have until September 15, 2023 to file any signed witness statement for any witness they intend to call in support of its position. If there are any new documents that have not been filed with the Tribunal, those shall be appended to the witness statements which refers to them.
The responding party shall have until October 17, 2023 to file any signed witness statement for any witness they intend to call in response.
These witness statements will be adopted as the witness’ direct evidence after they are sworn in. The party who called the witness will be afforded a short opportunity to ask questions that either clarify a statement made in the witness statement, or to respond to an issue that was not anticipated at the time the witness statement was signed. The witness will then be subjected to cross-examination and re-examination in the normal course.
By no later than June 23, 2023, the parties shall consult between themselves and provide no less than eight mutually available dates between November 1, 2023 and February 15, 2024. The Registrar will schedule five of these dates, subject to the Tribunal’s availability, to hear the merits of the applicant’s objection to the Review Officer’s plan and November 20, 2020 Order.
This panel remains seized.
“M. David Ross”
M. David Ross, Chair