Pay Equity Hearings Tribunal
PEHT Case No: 2143-18-PE
Ontario Secondary School Teachers' Federation, Applicant v Ottawa-Carleton District School Board, Respondent v Pay Equity Office, Respondent
BEFORE: M. David Ross, Chair, Lori Bolton and Stephen Roth, Members
DECISION OF THE TRIBUNAL: August 14, 2023
Decision
This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”). The application filing date is October 9, 2018.
By decision dated October 3, 2019, this matter was adjourned sine die pending the resolution of a fresh application being filed. An application was filed, and the Pay Equity Office issued its Notice of Decision on December 6, 2022 (“the Decision”).
On July 31, 2023, the applicant requested this matter to continue to be adjourned sine die. The basis for this request is that they require additional time to engage with the matters addressed given the substantial volume of the Decision.
The Tribunal has received and reviewed the Decision referred to by the application.
In the October 3, 2019 decision, the Tribunal held:
The purpose of the Act is “is to redress systemic gender discrimination in compensation for work performed by employees in female job classes”. The Tribunal has a genuine concern that conducting a hearing into the OSSTF’s allegations would be premature and only serve to continue to unduly delay a potential resolution of legitimately held pay equity concerns held by the OSSTF (if it is ultimately determined that the Act has not been complied with at any time prior to the date of this decision, which of course the Tribunal has made no finding in this decision). This is especially true given that the Office has proffered that a direct way to address any potential that the Act has not been complied with, and that is for the OSSTF to file a fresh application to review services.
It is trite to comment that if it is true, and because there are disputed facts the Tribunal makes no finding, that the OSSTF was not given notice of the 2011 Application to Review Services, and the OSSTF did not have the opportunity to make submissions during that process, the precedential value of the 2013 Notice of Decision may be limited, if there is any value at all. However, the Tribunal finds that the allegations that the OSSTF’s concern that the 2013 Notice of Decision will be afforded precedential value is premature because the Tribunal does not yet know whether the Office would rely on it if a fresh complaint is filed. From the Office’s submissions in this application (set out above) there is no reason to believe that this would be the case.
On this point, the Tribunal relies on the reasoning found at paragraph 22 of Ontario Public Service Employees Union v. Ontario (Government Services), 2009 CanLII 37958 (ON PEHT) where the Tribunal expressly stated that until the Office has declined to inquire into a complaint, an application filed out of concern that the Office would not act on an application to review services is premature:
- OPSEU’s position that the Office will not deal with its application assumes that its application falls within, and only within, the class of matters that the Office has stated in its May 2007 newsletter that it will not handle. The only issue that the newsletter states that the Office will not deal with is the negotiation of a Maintenance Agreement. OPSEU’s application complains that the Crown has not maintained pay equity and is required to negotiate a new pay equity plan due to changed circumstances or a sale of business. The Office’s newsletter states that the Office will enquire into complaints that pay equity has not been maintained and will enquire into whether a change of circumstances has occurred. Thus, there is no reason to assume that, if OPSEU were to file a complaint with the Office, the Office would refuse to open a file. The appropriate approach is for OPSEU to file its complaint or concerns with the Office and obtain a determination from the Office as to whether it will handle the complaint. Until such time as OPSEU does so, and the Office in fact declines to open a file, OPSEU’s argument is speculative and premature.
In both this case and Ontario (Government Services), supra, the applicant’s position was that the Tribunal should hear an application out of concern of what the Office will do if it filed its own complaint. While in this case, there is a 2013 Notice of Decision that the OSSTF has asked the Tribunal to revoke, the Tribunal agrees that it would be premature to conduct a hearing because one party holds a concern about what a Review Officer will do if it were to file a complaint.
That being said, the Tribunal does want to ensure to the parties that it takes allegations that procedural fairness and natural justice has been violated seriously. Therefore, this application will not be dismissed for being premature at this time, but rather this application is adjourned sine die until December 31, 2019. If the OSSTF wishes to pursue a complaint that the Act has not been complied with, with respect to this bargaining unit, it can file a fresh complaint with the Office by December 31, 2019. If the OSSTF files such a complaint, it is directed to write to the Tribunal and request that this application continue to be adjourned sine die pending the outcome of that complaint.
Given the range of possible outcomes if a fresh application to review services is filed, the Tribunal will review whether the OSSTF’s allegations that it was not afforded procedural fairness issues remain relevant, or if they have been rendered moot. If the Tribunal finds that the procedural issues raised remain relevant, it will consider the jurisdictional objections raised by the School Board and the Office at that time.
As set out above, the applicant filed a fresh application with Review Services, and the Decision has been issued. Accordingly, there is no issue that Review Services refused to consider the application because of the April 13, 2013 decision which was the applicant’s stated concern and the basis for this application.
The April 13, 2013 Notice of Decision addressed the sole issue of:
Whether there is evidence of changed circumstances such that the original deemed approved pay equity plan is no longer appropriate.
This issue (along with several other pay equity issues that were not addressed in the April 13, 2013 Notice of Decision) was expressly considered by the Review Officer at paragraphs 55 to 61 of the December 6, 2022 decision. It is also clear from the Decision that the April 30, 2013 Notice of Decision was not relied on for any precedential value or as a bar to filing that application with Review Services.
Accordingly, it is the Tribunal’s view that this application has become moot, and this outcome was one of the potential outcomes contemplated by the Tribunal at paragraph 29 of the October 3, 2019 decision. It is well established that the Tribunal does not inquire into the conduct of a Review Officer because a de novo hearing cures any alleged failing of Review Services. At paragraph 4 of Caressant Care Nursing and Retirement Homes, 2004 CanLII 60146, the Tribunal held:
To summarize, the Tribunal has held that de novo hearings before it cure any alleged failing in the Review Services process, an approach which is consistent with the scheme of the Act and the Tribunal’s remedial powers, which all focus on resolving the workplace parties’ underlying pay equity issues, and not on addressing a Review Officer’s conduct. Consequently, paragraphs 8 to 10 of the Application are struck because they raise matters about which the Tribunal will not inquire.
Furthermore, in this case there is no longer the concern that Review Services would not consider a fresh application because of the April 13, 2013 Notice of Decision. As such, there is no need to continue to adjourn this application sine die.
Of course, this decision is without prejudice to the applicant’s right to file an application with the Tribunal in regard to the December 6, 2022 Decision as per the normal course.
The Tribunal notes that seven months have already passed since that Decision was issued, and as such, encourages the applicant to decide whether it is going to file an application (and if so, to file it with the Tribunal) in respect of any aspect of the Decision within the next month or two to ameliorate against further delay.
Tribunal File No. 2143-18-PE is dismissed as it has become moot.
“M. David Ross”
M. David Ross K.C, Chair
“I agree”
Stephen Roth
“I agree”
Lori Bolton