Ontario Public Service Employees Union/Syndicat des Employés de la Fonction Publique de l’Ontario, Local 166 v Craigwood Youth Services, 2024 CanLII 122470

Ontario Pay Equity Hearings Tribunal

PEHT Case No: 2547-23-PE

Ontario Public Service Employees Union/Syndicat des Employés de la Fonction Publique de l’Ontario, Local 166, Applicant v Craigwood Youth Services, Respondent

BEFORE: M. David Ross, Chair, Lori Bolton and Stephen Roth, Members

DECISION OF THE TRIBUNAL: November 14, 2024

1. This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7 as amended (“the Act”). This application was filed on February 7, 2024.

2. In this application, the applicant, the Ontario Public Service Employees Union/Syndicat des Employés de la Fonction Publique de l’Ontario, Local 166 (“OPSEU”) has alleged that the respondent, Craigwood Youth Services (“Craigwood”), has not made proper pay equity adjustments going back to 2006, and that Craigwood made no pay equity adjustments at all in 2006 or 2007.

3. OPSEU’s allegations fall into three separate categories:

a) Craigwood did not make any pay equity adjustments in 2006 or 2007;

b) Craigwood failed to provide the highest pay equity adjustments to the lowest job rate pursuant to subsection 13(3) of the Act; and

c) Craigwood failed to apply the proper formula to the pay equity adjustments pursuant to subsection 13(4) of the Act from 2008 to 2016.

4. Craigwood has raised two preliminary arguments:

1. that this application should be stayed/dismissed for delay; and

2. that the Union’s section 13(3) allegations that the lowest job rate did not receive the highest adjustment was never raised before Review Services, and therefore, the Tribunal lacks jurisdiction to hear that argument.

5. The Tribunal heard Craigwood’s preliminary motions on October 23 and 28, 2024.

6. The parties filed an agreed statement of facts with respect to these preliminary arguments. The respondent filed a witness statement on behalf of, and called Maraika Doucet. The applicant filed witness statements on behalf of, and called Christine Hanycz, Jeanette Barba, and Jonathan Guider. Each of the witnesses were called and adopted their witness statements as direct evidence and then they were cross-examined.

Timeline

7. The timeline of the events in question, from the Agreed Statement of Facts and attached documents, is as follows:

a) The parties negotiated a pay equity plan which was signed on June 13, 1995. The parties used the proxy method of comparison to complete the pay equity plan. 29 years later, as of the date of this decision, pay equity still has not been achieved for three female job classes.

b) There is no dispute that Craigwood made appropriate pay equity adjustments to the end of the 2005 calendar year.

c) On June 28, 2007, the parties signed a Memorandum of Settlement resolving collective bargaining that covered the 2006 and 2007 years. That settlement provided for salary increases in intervals from January 1, 2006, to August 31, 2010. The parties dispute whether any of these salary increases can be considered pay equity adjustments.

d) In the spring of 2012, pay equity adjustments became a point of contention between the parties during collective bargaining. During the negotiations OPSEU asserted that Craigwood was “nearly a decade behind in pay equity” and engaged in an information picketing campaign regarding collective bargaining and pay equity.

e) In July 2012, Craigwood agreed to provide pay equity adjustments to affected classifications for the 2008 to 2012 years. Craigwood’s position is that these payments are over and above the normal pay equity adjustments that were already provided. OPSEU disputes Craigwood’s position on this issue.

f) On or around August 8, and September 5, 2013, OPSEU requested information related to pay equity from Craigwood.

g) On or about July 11, 2014, OPSEU requested further documentation regarding pay equity increases from 1994 to 2014 and advised Craigwood that it the failure to provide such information may result in a complaint to the Pay Equity Commission (“Commission”). No complaint was filed with the Commission in 2014.

h) On or about August 11, 2015, OPSEU held an internal meeting regarding its pay equity concerns. Craigwood was not aware of this meeting. No complaint was filed with the Commission following this meeting.

i) On February 16, 2018, Craigwood’s new Executive Director, provided additional information regarding pay equity to OPSEU, and set out the principles it would be making pay equity adjustments going forward.

j) OPSEU does not take issue with how pay equity adjustments were made from 2017 onward.

k) On August 1, 2019, OPSEU requested Craigwood’s agreement to distribute a pay equity questionnaire for two female job classes that it believed had changes to the job description, and to discuss its concerns with 2006 and 2007.

l) On August 21, 2019, Craigwood responded to the August 1, 2019 request.

m) OPSEU filed its complaint with the Commission on November 27, 2019.

n) The Review Officer issued her Notice of Decision on September 9, 2022. The Notice of Decision found no contraventions of the Act.

o) This application was filed on February 7, 2024.

Summary of the Evidence for the Reasons for the Delay

8. Mr. Guider, an employee of Craigwood and local 166 representative, provided OPSEU’s evidence for why it took until 2019 for OPSEU to file an application with Review Services. Mr. Guider has been a union steward with Craigwood’s local union since 2003.

9. In his witness statement, Mr. Guider set out that Craigwood stopped making pay equity adjustments in 2006 and no pay equity adjustments were made in 2006 to 2011. He then said that pay equity adjustments were a contentious topic for the 2008 - 2012 round of collective bargaining.

10. Mr. Guider spoke about the fact that pay equity adjustments were then included to settle the 2008 to 2012 collective agreement. In the Agreed Statement of Facts, the parties agreed that “Craigwood agreed to pay 1 percent adjustments to affected classifications for the years 2008 to 2012 inclusive, notwithstanding Craigwood’s position that it had already paid the relevant adjustments for 2008 and 2009.” Craigwood made it clear in July 2012 in a communication that it disputed the allegation that pay equity adjustments were not made in 2006 and 2007.

11. Mr. Guider testified that there were continued discussions about pay equity following the 2008 to 2012 round of collective bargaining. Outside of requests for information sent to Craigwood from OPSEU, it remains unclear to the Tribunal what substantive discussions or “negotiations” occurred between the parties.

12. Mr. Guider said that there were discussions in 2013 and 2014, there is no evidence about any discussions in 2015, and then pay equity concerns were raised again in 2016 and 2017. One example Mr. Guider provided of these discussions was that Mr. Liehmann, during a Board meeting in 2013, said something along the lines of “to hell with human rights” and insinuated that if they had to make pay equity payments for 2006 and 2007 that it would “end the agency”.

13. Evidence was filed demonstrating that in 2014, OPSEU had informed Craigwood that it intended to file a complaint with the Commission if they did not receive satisfactory information relating to pay equity, and had gone so far as to draft an application for Review Services in 2014 or 2015. The complaint was never filed and Mr. Guider did not know why.

14. Mr. Guider testified that a source of the delay included OPSEU changing its pay equity representative around 5 times. When asked why OPSEU would not file a complaint with the Commission the after Craigwood’s former Executive Director made the “To hell with human rights” statement, he said that this was a question for OPSEU (referring to OPSEU’s pay equity representatives, not the local union). Mr. Guider was also clear that the direction from OPSEU was to focus on collective bargaining, and not pay equity. It is obvious to the Tribunal that Mr. Guider was frustrated with the delay as well.

15. OPSEU did not call any of its pay equity representatives or file any witness statements in this case to explain the reasons for why it did not follow through with filing a complaint with the Commission in the 2013 to 2015 period.

16. Ms. Barba provided the evidence for why there was a 17-month delay in filing the application after the Notice of Decision was issued and when this application was filed. Generally, the rationale was that counsel was unable to attend to the file because of personal reasons, and the file was then transferred to new counsel within the firm which took some additional time.

Summary of the Parties’ Submissions

17. Craigwood requests this application to be dismissed pursuant to section 23 of the Statutory Powers Procedures Act (“SPPA”).

18. Craigwood submitted that the undue delay in filing this application has resulted in prejudice to it. Craigwood highlighted that the application filed in February 2024 is alleging breaches of the Act going back to 2006 and an 18-year delay in having to defend against the allegations contained in the application is egregious.

19. Craigwood submitted that the passage of time has caused prejudicial delay to a fair hearing as records may no longer exist, witness memories fade, and the individuals responsible for pay equity during this period have retired or otherwise left the organization.

20. Craigwood also submitted that it has been financially prejudiced by the undue delay because it has been unable to arrange its financial information to account for potential pay equity adjustments. Craigwood submitted that if the complaint been filed earlier, it could have ensured that the necessary reserve funds were accounted for, or changed how the pay equity payments were made earlier to mitigate against unaccounted for payments and interest, but it has lost that opportunity because of OPSEU’s delay in filing this application.

21. Craigwood submitted that the issue of whether pay equity payments were made in 2006 and 2007 crystalized in 2012 when the parties discussed pay equity in collective bargaining. Craigwood highlighted that the parties addressed pay equity in that round of collective bargaining, and the fact that OPSEU waited another seven years to file an application, lulled Craigwood into understanding that an application would not be filed, and it would not have to defend allegations going back to 2006.

22. Craigwood referred to the documentary evidence and Mr. Guider’s evidence to highlight that OPSEU understood that Craigwood’s position was that it had appropriately made its pay equity adjustments. Craigwood highlighted that OPSEU had internal meetings about pay equity and even drafted a complaint to the Commission in 2014 and/or 2015, but neither filed a grievance nor an application for Review Services until 2019. Craigwood submitted that Mr. Guider’s evidence that Mr. Liehmann said something along the lies of “to hell with human rights it would end the agency” at a 2013 board meeting, if true, ought to have triggered OPSEU filing a complaint with the Commission.

23. Craigwood also submitted that the 17-month delay between the Notice of Decision and filing the instant application was unreasonable. Craigwood noted that the purported reason for the delay was because counsel was not available for personal reasons for 60 days during that period is not a reasonable explanation, especially given the size of the counsel’s firm, for why Craigwood should be prejudiced by further delay.

24. Craigwood submitted that the additional delay included a period where it changed its email and payroll systems, which has made it more difficult to retrieve or locate evidence, such as old emails and pay records relevant to this proceeding. While Craigwood admitted that an employer could not change its systems to avoid pay equity obligations, it submitted that organizations evolve and change their technology over time.

25. Craigwood submitted that the Tribunal does not have jurisdiction to consider OPSEU’s position with respect to section 13(3) of the Act because it was not raised before the Review Officer and it is not referenced in the Notice of the Decision. Craigwood relied on the fact that the premise of OPSEU’s complaint to Review Services was that Craigwood was not providing pay equity adjustments of 1% of total payroll, and there is no reference to any issue relating to section 13(3) of the Act being raised prior to this application being filed.

26. Craigwood relied on the following authorities in support of its arguments: Canadian Union of Public Employees, Local 1328 v Toronto Catholic District School Board, 2019 CanLII 116293; Beaton v Brant Haldimand Norfolk Catholic District School Board, 2013 CanLII 62327; Queensway Nursing Home v. Group of Confidential Employees, 2010 CanLII 56873; Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44; Maitland Manor Health Care, 2015 CanLII 67576; Moro v. Thames Valley District School Board, 2012 HRTO 436; Ongwanada v OPSEU Local 433, 2001 CarswellOnt 10844; ONA v St. Michael’s Hospital, 1991 CarswellOnt 7737; TRW Canada Ltd. (No. 1) (1995), 6 P.E.R. 98; and Scarborough (No. 1) (1994), 5 P.E.R. 45.

27. OPSEU submitted that there are no time limits in the Act and that Craigwood has not suffered prejudice that would make a hearing unfair such that it should be dismissed for an abuse of process.

28. OPSEU submitted that the delay in filing the application was justifiable because during the period of 2012 to 2019, “meaningful negotiations” about pay equity took place between OPSEU and Craigwood. OPSEU submitted that at no time was Craigwood lulled into a false sense of security that an application would not be filed because Craigwood always knew that OPSEU took the position that pay equity adjustments were not made in 2006 and 2007. OPSEU submitted that the fact that Craigwood changed its practice in 2018 to OPSEU’s satisfaction is evidence that these negotiations were meaningful.

29. OPSEU submitted that the 17-month delay from when the Notice of Decision was issued by the Review Officer and when it filed this application is not significant and the members should not be precluded from seeking redress for systemic discrimination because of inadvertence from their counsel.

30. OPSEU submitted that Craigwood does not suffer prejudice because key witnesses have left the organization. Craigwood submitted that the witnesses are available even if they do not continue to work for Craigwood and there is no evidence that they will not testify under a summons, if not voluntarily. Furthermore, two of Craigwood’s primary witnesses left the organization after the application to Review Services was filed.

31. OPSEU submitted that the evidence about the payroll records does not support dismissing the application because of delay. OPSEU highlighted that Ms. Doucet’s evidence is that the pay records are deficient in differentiating what payments were made to address the pay equity gap because all payments were coded as “retro” for pay equity and non-pay equity purposes. OPSEU submitted that this means that the records would have been deficient regardless of the delay, therefore it was not delay that has affected the quality of the records that must be relied on in this case. OPSEU also submitted that it is not at fault because Craigwood did not properly keep its records.

32. OPSEU submitted that the facts in this case are not in dispute (this is not agreed to by Craigwood), and therefore, there is not the same prejudice about witnesses not being able to recall events because of faded memories over time.

33. OPSEU submitted that its argument under subsection 13(3) of the Act is not a newly raised issue, rather it forms part of its general complaint that Craigwood had not made the appropriate pay equity adjustments of 1% of total payroll.

34. OPSEU relied on the following authorities in support of its arguments: Pay Equity Office v. GL&V Process Equipment Group Inc., 1999 CanLII 14826 (ON PEHT); Queensway Nursing Home v. Group of Confidential Employees, 2010 CanLII 56873 (ON PEHT); Windibank v Windsor (City), [2008] OPED No 2; Beaton v Brant Haldimand Norfolk Catholic District School Board, 2013 CanLII 62327 (ON PEHT); Canadian Union of Public Employees, Local 1328 v Toronto Catholic District School Board, 2019 CanLII 116293 (ON PEHT); Finlay v Paassen et al., 2010 ONCA 204; Scarborough (No. 1) (1994), 5 P.E.R. 45; Ongwanada v Ontario Public Service Employees' Union, Local 433, [2001], OPED No 9; Kensington Village (2000), 11 P.E.R. 1; Regesh Family and Child Services v. Mercer, 2002 CanLII 49452 (ON PEHT); Pay Equity Office v Sexual Assault Support Centre of Ottawa, 2016 CanLII 28877 (ON PEHT); and Addiction Services of Eastern Ontario v. Canadian Union of Public Employees (CUPE Local 1997-02), 2009 CanLII 31617 (ON PEHT).

Decision

35. This is another case before the Tribunal where the application contains allegations of breaches of the Act from over a decade prior to the complaint being filed with the Commission. The reason why the Tribunal regularly considers these delay arguments is because the Act remains lacking in that it contains no statutory limitation period, but also contains no obligation to maintain records relating to pay equity. The lack of either statutory requirement creates practical problems for parties seeking to enforce their rights under the Act and having to defend against such allegations after considerable periods of time have passed.

36. It is well established that the Tribunal’s authority to dismiss an application, or part thereof, due to delay is found in section 23 of the Statutory Powers Procedure Act, RSO 1990 (“SPPA”):

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

37. In Queensway, supra, the Tribunal considered Blencoe, supra, and explained that whether a delay amounts to an abuse of process depends on the contextual factors of the case. At paragraph 26 of Queensway, supra, the Tribunal held:

Whether a delay amounts to an abuse of process is not determined based on the length of the delay alone. Rather, it depends on contextual factors such as the nature of the case and its complexity, the facts and issues in dispute, the purpose and nature of the proceedings, whether the party seeking a remedy contributed to the delay and the nature of the various rights at stake in the proceedings.

38. In this application, OPSEU has made three separate allegations: 1) that no pay equity adjustments were made in 2006 or 2007; 2) that the pay equity adjustments from 2008 to 2016 were not correct because they are not compliant with subsection 13(3) of the Act; and 3) that the pay equity adjustments from 2008 to 2016 were not correct because they did not pay 1% of total payroll. The Tribunal will consider each allegation separately.

Prejudice of Delay

39. It is well-established that significant delays are presumptively prejudicial to fair hearings. Other administrative tribunals, such as the Ontario Labour Relations Board, also do not have statutory limitation periods for certain types of complaints. These administrative tribunals have been clear that delay should be measured in “months not years” and prejudice is presumed after one year. At paragraphs 52 and 53, in Toronto Catholic District School Board, supra, the Tribunal held:

40. As the Employer has pointed out, adjudicative tribunals find presumptive prejudice for delay in situations where there is no statutory time limit. Examples of this are applications under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “LRA”) and applications under section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended (“OHSA”). In Sheller-Globe, supra, the OLRB considered an application under section 96 of the LRA, in which the applicant alleged that her union violated its duty of fair representation under section 74. In that case, the delay was for 2 ½ years. The OLRB had this to say at paragraph 13:

41. A delay of the present magnitude carries with it an element of prejudice is undeniable. Memories fade, and a party’s ability to present a defence will deteriorate for that reason alone. This is particularly true when a party is not on notice that an action against it, requiring the litigation of certain events, remains pending.

42. When considering applications under section 96 of the LRA and section 50 of the OHSA, the OLRB generally measures delay in months, not years, and it will presume prejudice to a responding party or intervenor where the delay exceeds one year (See: David Garland, 2012 CanLII 45662 (ON LRB) (August 7, 2012) and the decisions cited therein). However, in presuming prejudice, the OLRB is not essentially imposing a judicial limitation period on those proceedings because the OLRB does not automatically dismiss a matter once a delay of this duration has occurred. Instead, it considers other factors as well and, significantly, gives the parties at risk of having their matters dismissed for delay an opportunity to explain and to also rebut the presumption of prejudice. Contrary to the Union’s assertions, we do not find that giving an applicant the opportunity to rebut the presumption of prejudice constitutes shifting the onus onto the applicant.

43. This is also true for “paper hearings” or hearings that do not require a significant amount of viva voce evidence. In Toronto Catholic District School Board, supra, the Tribunal held at paragraph 55:

An application under section 22 of the Act is an appeal or a review of an existing order, which distinguishes it from the other types of proceedings considered above. Although a tribunal’s jurisdiction is statute-based, and an application under section 22 of the Act does not constitute a discretionary or equitable remedy akin to a judicial review application before the courts, it is instructive that the courts presume prejudice in applications for judicial review. It is also notable that an application for judicial review is a paper-based inquiry, yet courts will still find presumptive prejudice when appropriate. In the recent decision of Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.), the Divisional Court considered whether to dismiss an application for judicial review of a decision of the Human Rights Tribunal of Ontario which was filed 16 months after the decision on the merits (13 months after the reconsideration decision). The Court also noted that the applicant took approximately one year to perfect the application for review. At paragraphs 7-9, the Court stated:

7. The delay here is excessive - 16 months to commence the application and almost another year to perfect it.

8. There is no reasonable explanation for the delay. It appears that the applicant waited for about a year to contact the Divisional Court about filing an application for judicial review. It appears that he was busy with other legal matters. Even if the applicant was pursuing other litigation, that does not relieve him of his obligation to move expeditiously in pursuing judicial review (see Ransom v. Ontario, 2011 O.J. No. 6208 (Div. Ct.) at para. 12).

9. Prejudice to the parties can be presumed. The events in issue date back to 2013. The application against OPSEU was dismissed in November 2015. This is a labour relations matter, where the courts have stated that timely resolution of a dispute is particularly important (see OPSEU v. Ontario Ministry of Labour, 2001 O.J. No. 1037 (Div. Ct.) at para. 10).

[emphasis added]

41. The most obvious prejudice caused by delay is that memories fade over time. In this case, the hearing dates are scheduled for April 2025. This means that if this case is to proceed going back to 2006, witnesses would be required to recall discussions, documents, and events from anywhere from 8 to 19 years prior. It is unreasonable to believe that witnesses’ memories have not been affected by such an excessive delay. The Tribunal notes that the Courts have held 16 months to be “excessive”, and this case involves events that are over 16 years prior.

42. Another prejudicial effect delay can have on witnesses is on their availability and ability to access relevant documents. In this case, four of the respondent’s key witnesses that were involved in the pay equity disputes have left the respondent’s organization. On the applicant’s side, at least 5 pay equity representatives have had carriage of this file, and the Tribunal was advised that one of them, the representative who was involved in the events of 2012 and in the internal discussions about whether to file a complaint with the Commission, has unfortunately passed away.

43. The importance of witness availability is also not limited to whether they are able to be located and summonsed. That is an important factor, but another important factor for the purpose of preparing for a legal proceeding is that individuals who are no longer in the workplace are unlikely to have access to the respondent’s records help prepare for the case. This is particularly true for document heavy proceedings. These witnesses are less able to search their own work emails, and they are not living day-to-day in the workplace with the potential outcome of a legal proceeding influencing their day-to-day work.

44. At paragraph 68 of Toronto Catholic District School Board, supra, the Tribunal held:

45. Fifth, although we have found that it is appropriate to presume prejudice in cases such as this, we in any event, find that there has been actual prejudice in this case. The Employer’s uncontradicted evidence is that 11 key personnel and witnesses (both Union officials and members of management) have either retired or resigned from their positions with the Employer and another has passed away. According to Ms. Stavropoulos, new hires in employee relations have no institutional knowledge of the process and are less able to assist in preparing for the hearing on the merits. According to Ms. Leung there is no document protocol at the Board. Therefore, there is no real way to be certain that all documents that are relevant to this matter are in fact retrieved. While on its own, the fact that individuals have retired, resigned and died may not be sufficient to establish that a fair hearing is not possible, when considered along with the loss of institutional knowledge, compounded by the absence of a document protocol, we find that the Employer has established actual prejudice in this case. The fact that the Employer has not established that these retired and resigned potential witnesses are actually unavailable to testify does not prevent it from relying upon this prejudice. The prejudice arises from the number of individuals with knowledge of the relevant events who are now disengaged from the workplace, and the fact that the Employer’s ability to rely upon their institutional knowledge to prepare for the hearing, and to have them speak to the processes and activities that took place at the relevant time is compromised. It is true that pay equity matters often involve document-heavy inquiries. However, that does not change the fact that witnesses in this case, through viva voce evidence, must explain and justify the Employer’s methods of gathering the relevant job information and its decision-making respecting maintenance over the years. We also note that the Union has broadly asked for the 10 jobs to be re-evaluated and for the Tribunal to issue “an appropriate remedy.” Since the Union’s position is that the jobs have not been evaluated since the 1990s, this leaves the potential for remedies dating back decades, respecting a workplace that has necessarily seen turnover during this entire period of time.

[emphasis added]

45. Delay also prejudices the quality of the documentary evidence available in an adjudicative proceeding. As time passes, documents can be deleted, destroyed, or lost and witnesses/individuals may forget that helpful documents exist or how to locate them. The Tribunal has commented that while there is no stated limitation period in the Act, there is also no statutory obligation to maintain records relating to pay equity. If there was a statutory obligation to maintain records, then this would alter the analysis of when document retention issues could prejudice a respondent. At paragraph 69 of Toronto Catholic District School Board, supra, the Tribunal held:

Although the Union raised the possibility of appealing the Order in 2008 and again in 2011, we do not find that the Employer was under the obligation to remain prepared for a potential appeal indefinitely. Further, the key prejudice that occurred in this case was unavoidable (retirement, resignation and a death) and could not have been mitigated by any diligence on the party of the Employer. Further, while the Act does not contain a general limitation period for filing a review of an order, the Act also does not include a record keeping obligation, much less require an Employer to maintain records indefinitely so as to defend itself in the event that an applicant seeks review of an Order several years after the fact.

[emphasis added]

46. The record keeping obligations which the Tribunal has relied on in its jurisprudence are not found in the Act, but the Employment Standards Act, and the Income Tax Act. At paragraphs 48 to 50 of Piche v. Kapuskasing Indian Friendship Centre, 2022 CanLII 113148, the Tribunal commented on the record keeping obligation and the Tribunal’s considerations about how delay interacts with these record keeping obligations:

47. Ms. Piché filed an application with the Pay Equity Office in 2017. At that time, the respondent knew that it did not have a pay equity plan and was required to have one. Therefore, at an absolute minimum, once Ms. Piché’s application was filed and Review Services became involved in 2017, the respondent had an obligation to preserve all its relevant records. This included any pay equity information that the former Executive Director compiled during her tenure.

48. Objectively, as of the date Ms. Piché filed her application, the respondent ought to have had, at an absolute minimum, six years of payroll records because the Canada Revenue Agency requires all payroll records to be retained for no less than 6 years. The Employment Standards Act, 2000, S.O. 2000, c.41, also requires all records pertaining to vacation pay (which requires wages to be recorded) to be retained for no less than five years. As such, the earliest conceivable date that could possibly have been considered where the lack of records could start being relied on as causing prejudice would be sometime in 2011. To find otherwise would only serve to permit the notion that in the face of a pay equity complaint, employers could shred their payroll documents and relevant pay equity information and then simply claim that it is impossible to achieve pay equity because the records no longer exist. This would be absurd, inconsistent with the purpose of the Act, and only serve to exacerbate the historical pay disadvantage that employees in female job classes have experienced at an employer that has not completed a pay equity plan contrary to the statutory requirement to do so.

49. This issue gets further complicated by the fact that there is no limitation period in the Act, but there is also not a corresponding obligation to keep records, or any guidance in the Act about how long records must be kept. This appears to be an issue unique to the Act, and admittedly is a significant challenge that the Tribunal is having to address and considers with increasing frequency. However, again, given the purpose of the Act, the analysis of when it would be permissible to “cut off” pay equity obligations because of a lack of records is a contextual one. The factual context of each case will determine whether a respondent can rely on a lack of records to claim that reviewing whether pay equity can be achieved has been made impossible.

50. Another prejudicial element of delay is the lost opportunity respondents have to their change practices or otherwise account for potential liabilities. If complaints were promptly raised to the employer, and then filed with the Commission in a timely manner, respondents can limit their potential liability by changing their practices (if they agree with the applicant’s position with or without the assistance of Review Services) or are in a better position to account for the potential liability (if they disagree with the applicant but understand that the dispute has been escalated to the Pay Equity Commission and a potential financial liability has crystalized). The Tribunal has found that the loss of these opportunities to address these complaints in a timely manner causes prejudice and irreparable harm to respondents.

51. At paragraph 55 of Queensway Nursing Home, supra, the Tribunal held:

The prejudice to Queensway as a result of the delay is not limited to its inability to have a fair hearing. The prejudice to Queensway includes the fact that, as a result of the delay, it was denied the ability to mitigate its financial damages by characterizing wage increases given during the period of 1995 – 2005 as pay equity adjustments or setting aside reserves in anticipation of a finding of potential liability. If the Order were to stand, Queensway would face the prospect of paying further pay equity adjustments that it could have avoided or planned for without having the funds required to do so.

[emphasis added]

49. At paragraph 27 of Brant Haldimand Norfolk Catholic District School Board, supra, the Tribunal commented on the prejudicial financial impacts of delay:

Notwithstanding that the Tribunal recognized the important pay equity interests of the complainant employee, it held that the prejudice to the employer as a result of the delay was not limited to its inability to participate in a fair hearing. The Tribunal also noted that the delay negated the employer’s capacity to mitigate its financial damages and potential liability that it otherwise might have avoided or planned for had there not been inordinate delay. As we have noted, the applicant in this case is seeking the reinstatement of six employees who were laid off nine years ago. Potentially, such a remedy could give rise to very substantial damages.

[emphasis added]

50. At paragraphs 30 and 31 of Maitland Manor, supra, the Tribunal held:

51. We are satisfied that the rights of Maitland Manor have been considerably and irreparably prejudiced as a result of the unexplained delay in this case. The significant prejudice to Maitland Manor includes the following:

• Firstly, given that timely comments and/or objections to the 1995 Non-Union Plan were not made by any of its employees within the periods prescribed by the Act, it would have been reasonable to conclude that (and to conduct one’s business affairs as if) the non-union PPEP was valid and deemed approved. As a result, over the next ten years, Maitland Manor completed pay equity wage adjustments based on the non-union PPEP. If the non-union employees had commented on or objected to the non-union PPEP within the prescribed periods, Maitland Manor could have amended that Plan as necessary at the time and recast the general minimum wage increases paid to these employees from 1994 to 2004 as pay equity adjustments to be phased-in on an annual basis until pay equity was achieved. Instead, years later, Maitland Manor faces a potentially substantial financial liability if it is required to make retroactive pay equity adjustments and pay interest on these amounts.

• Furthermore, due to the considerable delay in this case, Maitland Manor no longer has the payroll records which would allow it to retrieve complete data with respect to the wage increases paid to the non-union employees from 1994 to 2004. Therefore, the applicant is unable to request that the Tribunal permit it to retroactively characterize the wage increases during this period as pay equity adjustments – again resulting in substantial and irreparable prejudice to it.

• In addition, Maitland Manor has given wage increases to the non-union employees since 2005 which it could have characterized as pay equity adjustments had it been informed of the anonymous complaint and the PEO's position in that regard in a timely manner. In particular, Maitland Manor could have characterized the lowest wage increase in the job classifications for each year as pay equity adjustments. With timely disclosure of the anonymous complaint, the applicant could have mitigated nearly all of its potential liability by characterizing these wage increases as pay equity adjustments.

• Alternatively, rather than providing differential wage increases to the non-union employees, Maitland Manor could have deferred wage increases and paid the employees only the minimum pay equity adjustment based on one percent of the previous year’s payroll pursuant to the non-union PPEP until the applicant’s potential liability was determined. With the knowledge of a potential pay equity liability, Maitland Manor could have used its wage adjustment reserve (built from having deferred wage increases) to pay any wage gap determined by the Tribunal in order to achieve pay equity.

31. As we have indicated, Mr. Huff argued that, once the applicant learned of Ms. Parson’s concern about the non-union PPEP on June 14, 2006, it ought to have taken immediate steps to secure employee pay records and consider establishing a monetary reserve. This overlooks the fact that, by this stage, approximately 11 years had passed since the posting of the non-union PPEP under which all pay equity adjustments (supplemented by other wage increases) had been paid out. In the absence of any known employee objection to the non-union PPEP for eleven years, the applicant would not have been put on notice to secure its pay records for the entirety of that period. Furthermore, there is no express provision of the Act stipulating a minimum record retention period.

[emphasis added]

51. In this case, the Tribunal finds that there has been actual and presumed prejudice because of the delay. The question turns to whether the prejudice caused by the delay has made it unfair for the respondent to the point where it can be considered an abuse of process pursuant to section 23 of the SPPA. The Tribunal will consider the impact of the delay on each of OPSEU’s allegations individually.

“Meaningful Negotiations” as a Justification for Delay

52. OPSEU relies on its argument that the reason why it delayed such an inordinate amount of time before filing a complaint with the Commission is because it was engaging in “meaningful negotiations” with the employer about pay equity during this period. OPSEU relied on Tribunal jurisprudence that held that meaningful negotiations can be a reasonable explanation and justify some period of delay. At paragraph 30 of GL & V Process Equipment Group, supra, the Tribunal held:

The propositions that emerge from the above cases are:

• the alleged abuse of process must relate to an abuse of process before the Tribunal;

• delay in filing an application will not necessarily constitute an abuse of process where the parties have been engaged in meaningful negotiation;

• in determining whether an application in abusive, the Tribunal may have regard to the legitimacy of the issue to be resolved.

[emphasis added]

53. This comment was also referred to in Queensway Nursing Home, supra, at paragraph 18:

The Tribunal has refused to find an abuse of process in situations where the delay in question amounted to several months and less than a year: see for example, Brampton (City) v. Brampton Professional Firefighters Assn., supra; GL&V Process Equipment, supra; and the more recent decision in Upper Grand District School Board, supra. The Tribunal has countenanced even longer delays where the parties were engaged in the meantime in meaningful negotiation: Southern Ontario Newspaper Guild v. Maclean Hunter Canadian Publishing, supra.

[emphasis added]

54. However, an important point of distinction from the cases above and the instant case is that in GL & V Process Equipment, supra, the Tribunal is referring to statutory mandated negotiations between trade unions and employers. There are no such mandatory negotiations directed by the Act between OPSEU and Craigwood in the instant case.

55. For example, GL & V Process Equipment, supra, involves the negotiation of the pay equity plan. Negotiation of a pay equity plan is statutorily directed in section 14(2) of the Act:

The employer and the bargaining agent for a bargaining unit shall negotiate in good faith and endeavour to agree, before the mandatory posting date, on,

(a) the gender-neutral comparison system used for the purposes of section 12; and

(b) a pay equity plan for the bargaining unit.

56. Likewise, if changed circumstances have occurred that require an amendment of the pay equity plan, section 14.1(1) of the Act directs the parties to negotiate:

If, in an establishment in which any of the employees are represented by a bargaining agent, the employer or the bargaining agent is of the view that because of changed circumstances in the establishment the pay equity plan for the bargaining unit is no longer appropriate, the employer or the bargaining agent, as the case may be, may by giving written notice require the other to enter into negotiations concerning the amendment of the plan.

[emphasis added]

57. However, the timeline for these negotiations is not unlimited, and the Act limits the time in which parties are expected to negotiate before proceeding to the Commission. For example, subsection 14.1(3) of the Act only provides the parties 120 days to negotiate before notice must be given to the Commission:

If the employer and the bargaining agent do not agree on an amendment before the expiry of 120 days from the date on which notice to enter into negotiations is given, the employer shall give notice of the failure to the Commission.

[emphasis added]

58. While 120 days may be an optimistic period for employers and their bargaining agents to negotiate amendments to a plan, the Act clearly intends to provide parties a short period of time to negotiate before they must involve the Commission to help settle any disputes, and to determine the dispute if settlement is not achievable.

59. In the instant case, the “meaningful negotiations” referred to by OPSEU were not one of the situations where the Act directs mandatory negotiations. The pay equity plan had been negotiated and signed off on in 1995, and this is not a situation where the “negotiations” were triggered because of changed circumstances.

60. Therefore, the Tribunal does not agree with OPSEU’s assertion that the delay was justified because “meaningful negotiations” occurred during the period of delay. It is unclear to the Tribunal what negotiations took place, and in any event, it does not justify the exceptional delay that occurred in this case when the Act, and the Tribunal’s jurisprudence is clear that pay equity disputes should be referred to the Commission sooner rather than later. The fact that Mr. Ashbourne changed the way pay equity adjustments were made after he became the Executive Director, which appears to have satisfied OPSEU, is not evidence of “meaningful negotiations”. There is no evidence before the Tribunal that OPSEU negotiated the changes seen in Mr. Ashbourne’s February 16, 2018 email. The evidence is that Craigwood changed the way it was providing pay equity adjustments, and OPSEU appears satisfied with how pay equity adjustments have been made since that time.

61. In the Tribunal’s view, this case exemplifies the Court’s commentary in 10 Community Care Access Centres, 2021 ONSC 5348, that the traditional “oppositional, adversarial, and confrontational” processes commonplace in labour relations, such as collective bargaining, is not an optimal way to address the “broader social issue” the Act is designed to redress. In 10 Community Care Access Centres, supra, at paragraphs 44 and 45 the Court held:

Before going on, I wish to step back and consider the overall context in which these matters proceed. The Pay Equity Act is set against a ubiquitous form of discrimination and demonstrates our collective effort to respond to it. It is quasi-constitutional human rights legislation directed at redressing systemic gender discrimination. As such, it does not just touch the parties. It implements a value that is fundamental to our society and reflects on us all. The Pay Equity Act demonstrates our collective belief that this discrimination is wrong and should be rectified. As perceived by the Ontario Nurses’ Association this understanding demonstrates a context calling for obligatory negotiations. Contrary to a statement made by the Pay Equity Hearings Tribunal referencing the decision of this Court in Canadian Union of Public Employees, Local 1999 v. Lakeridge Health Corp. the Ontario Nurses’ Association submits that such a requirement would further the purpose of the Act to facilitate a collaborative approach by employers and trade unions to maintain pay equity. The statutory interpretation applied by the Pay Equity Hearings Tribunal was “contrary to the express human rights and quasi-constitutional purpose of the Pay Equity Act because it enfeebled the role of a trade union and blunted mandatory bargaining as a key remedial mechanism in unionized workplaces.” There is a different perspective. Labour law and labour relations, as they operate in the province of Ontario, are founded on the understanding that the relationship between employers and unionized employees is essentially oppositional, adversarial and based on confrontational processes. Collective bargaining follows this structure. Rather than facilitate resolution, it can lead to extended discussion, disagreement and disputes. This may be appropriate for a relationship between a union and employer which, at its root is a struggle for a better position within the relationship. It is not appropriate where the goal runs beyond the parties and seeks to move a broader social issue forward. The balance may lie in allowing for negotiations where the parties see the benefit but, where negotiations fail, to have it arranged so that the issue can be moved into, and determined through, an administrative process. This understanding of the context and the process has been incorporated into and recognized by:

45This approach of providing the employer and the bargaining agent the opportunity to resolve any concern but leaving it to the Pay Equity Commission in the person of the Review Officer and the Pay Equity Hearings Tribunal where they are unable to do so within a reasonable period of time is demonstrates what happened in this case.

[emphasis added]

62. The Court is clear that pay equity issues are broader social issues that require resolution “within a reasonable period of time”. The Act is structured to facilitate negotiations between the parties, but when negotiations fail the proper method of resolving pay equity disputes is to have the Review Officer issue their Notice of Decision/Order and either party has the right to proceed to the Tribunal if they dispute any element of the Review Officer’s decision.

63. While it is preferential for parties to resolve their pay equity disputes between themselves, these disputes cannot be sanctioned by the Tribunal to linger for years or even decades if the purpose of the Act is to be meaningful. If parties are not able to resolve their disputes between themselves in a timely manner, they must utilize the Act’s dispute resolution processes or risk having the application, or parts thereof, dismissed pursuant to section 23 of the SPPA because of the prejudice delay causes to fair hearings and a respondent’s ability to respond to the allegations.

64. Furthermore, as discussed above, filing a complaint with the Commission does not end “meaningful negotiations”, in fact, it promotes meaningful negotiations because the Review Officer’s role is first to attempt to resolve the matter through settlement. However, when a complaint has been filed with the Commission, there is a “delay safety net” if the parties are unable to resolve the matter with the assistance of the Review Officer because there is a statutory process to have a dispute adjudicated if negotiations fail, and the act of filing a complaint with the Commission requires respondents to preserve all relevant information to the complaint at that time.

65. Additionally, in many cases, the impetus to settle a matter is encouraged once a formal complaint is filed because it forces the parties to address the matter or risk having an unfavourable order or notice of decision.

66. This is to say that the earlier that the parties identify that they are unable to resolve the dispute between themselves and proceed to the Commission, the more effective and efficient the process becomes because it focuses the parties on the dispute and mitigates against the prejudicial effects of delay.

67. Accordingly, the Tribunal finds that OPSEU’s rationale for the delay in filing its complaint with the Commission is not a compelling justification for the substantial delay in this application.

68. The Tribunal also does not find that Craigwood contributed to any of the periods of the delay.

The Allegation that Pay Equity Adjustments Were Not Paid in 2006 or 2007

69. OPSEU has alleged that Craigwood failed to make any pay equity adjustments in 2006 or 2007. Craigwood disputes that pay equity adjustments were not made in 2006 or 2007. From the evidence filed with the Tribunal, Craigwood has never deviated from this position.

70. In the Tribunal’s view, the allegation that pay equity payments were not made in 2006 and 2007 crystalized in 2007 and 2008 once the pay equity adjustments were allegedly not made in accordance with the pay equity plan, not in 2012 as suggested. The Tribunal does not agree that there is another reasonable rationale. In this case, pay equity had not been achieved for several female job classes in 2006 or 2007, and therefore, pay equity adjustments were required.

71. Given how the dispute is framed, it can only be that pay equity adjustments were made in 2006 and/or 2007 or they were not. It is a binary proposition. If pay equity adjustments were not provided, it ought to have been obvious to OPSEU and its members. If employees in job classes that had not achieved pay equity did not receive pay equity adjustments in accordance with the pay equity plan and the Act which is aimed at redressing historical pay discrimination, this ought to have been an obvious problem that a trade union would notice and advocate for on behalf of its members immediately. Furthermore, if the dispute is as clear as OPSEU suggests it is, that payments were not made, the complaint to the Commission is among the simplest kinds of complaints to file and have determined.

72. OPSEU is a sophisticated trade union with staff representatives specifically trained in pay equity. The suggestion that it took at least five years for OPSEU to realize that its members did not receive pay equity adjustments is difficult to understand. It is also difficult for the Tribunal to understand how it took until November 2019 to file an application with Review Services alleging that pay equity adjustments had not been made in 2006 and 2007.

73. OPSEU submitted that the delay is not prejudicial, and it does not create an unfair hearing because Craigwood knew about OPSEU’s position on this issue, and that the determination of this issue can be done from the interpretation of a Memorandum of Settlement from 2007.

74. The Tribunal does not agree. In the Agreed Statement of Facts, the parties dispute whether the Minutes of Settlement provides for pay equity adjustments or salary increases. While the document refers to the increases as “salary increases”, Craigwood has a different interpretation and would have to call witnesses to provide evidence about the context surrounding this document. The problem of course is that after such a significant delay, the prejudicial effects of delay as discussed above have taken effect.

75. OPSEU submitted that the parol evidence rule stands for the proposition that evidence about agreements outside of the written contract are inadmissible and therefore the prejudice of delay is not as impactful on this dispute because the extrinsic evidence is not relevant.

76. Again, the Tribunal does not agree with OPSEU on this point because the Tribunal must first determine whether to admit parol evidence, and that requires the parties to make submissions about whether there are latent or patent ambiguities that could require extrinsic evidence. In the normal course, the Tribunal seeks submissions and legal arguments about whether the parol evidence rule would apply in each specific instance.

77. In this case, as set out above, the length of time that has passed has even prejudiced Craigwood’s ability to prepare for that argument. For example, it is difficult to know whether there are, or were, documents or other evidence that could disclose a latent or patent ambiguity and persuade the Tribunal that this case is an exception to the parol evidence rule. It is also unfair to require a party to try and remember what documents or evidence may exist, and to require potential witnesses, most of whom no longer work at Craigwood, to remember the events surrounding an agreement that was signed in 2007, where there were no timely indications that the wording of the 2007 settlement would be the subject of an adjudicative proceeding in 2025. This is especially true in this case, where any pay records that do exist from that time, does not distinguish between different types of “retro” payments. That fact in and of itself requires someone to explain to the best of their ability how the payments were made and what they were for almost two decades prior.

78. If this allegation was made in a timely manner, there would be limited concern about the prejudicial effect that delay could have on this issue. However, in this case, the Executive Director, Manager of Finance, Human Resources Manager, and Program Director (and then Executive Director) have all since left Craigwood’s employment. However, all these individuals were employed by Craigwood as of 2016. This means that OPSEU had at least 6 to 8 years (the Tribunal is not making any comment that a 6 to 8 year delay is reasonable or not prejudicial, but this just exemplifies the amount of time OPSEU had to make a complaint before witnesses left the organization) from the time OPSEU alleges that pay equity adjustments were alleged to have not been made where all four of these key individuals were still actively employed by Craigwood.

79. The Tribunal is also satisfied that Craigwood has been consistently clear in its position that pay equity adjustments were made in 2006 and 2007. The parties filed 2012 newspaper clippings where Mr. Liehmann is quoted as saying that pay equity payments have been made “to the end of 2009”. There is no evidence before the Tribunal that Craigwood has conceded that pay equity adjustments were not made in 2006 and 2007. The fact that OPSEU periodically told Craigwood that it does not believe payments were made in 2006 and 2007 does not help its case, in fact, the Tribunal finds the opposite. By OPSEU taking no action to enforce its members rights for years, in the face of Craigwood’s clear position that no payments are owing, it provided the impression to Craigwood that no complaint to the Commission would be filed.

80. Furthermore, the Tribunal finds that since the parties addressed the issue of pay equity adjustments in the 2008-2012 round of collective bargaining, which was contentious between the parties, there was a clear opportunity to have the 2006 and 2007 pay equity disputes resolved at that time. When the 2008 to 2012 settlement was resolved, if there remained any disagreements about a period prior to that settlement, it was OPSEU’s obligation to raise that complaint with the Commission promptly.

81. Accordingly, the Tribunal finds that the delay in filing the application in 2019 with respect to the allegation that pay equity adjustments were not made in 2006 and 2007 is excessive; that the delay results in both actual and presumptive prejudice to Craigwood with respect to this issue; that Craigwood did not contribute to the delay; and OPSEU’s rationale for the delay is not persuasive.

82. The Tribunal declares that OPSEU’s allegation that pay equity adjustments were not made in 2006 or 2007 is dismissed pursuant to section 23 of the SPPA.

Section 13(3) of the Act

83. Section 13 of the Act is titled “Pay equity plans required”. This is the section of the Act which sets out the requirements of a pay equity plans.

84. Subsection 13(3) of the Act states:

A pay equity plan shall provide that the female job class or classes that have, at any time during the implementation of the plan, the lowest job rate shall receive increases in rates of compensation under the plan that are greater than the increases under the plan for other female job classes until such time as the job rate for the female job class or classes receiving the greater increases is equal to the lesser of,

(a) the job rate required to achieve pay equity; and

(b) the job rate of the female job class or classes entitled to receive an adjustment under the plan with the next lowest job rate.

85. As such, subsection 13(3) of the Act is a requirement of pay equity plans. In this case, the parties ought to have referenced the obligation in the pay equity plan but there is express reference. This is different than the requirements under section 13(4) of the Act, where the parties’ pay equity plan expressly references the requirement:

The Act requires the employer to set aside a minimum of 1% of the previous year’s payroll for the employee group represented by the Plan for the purpose of closing identified wage gaps …

86. Craigwood then made pay equity adjustments in accordance with the negotiated plan that are not contested from 1994 to 2005, and then from 2017 onwards. There is no evidence before the Tribunal that the pay equity adjustments made in the years that are not challenged by OPSEU were done in strict compliance of what section 13(3) of the Act requires of pay equity plans. Given how long several of the female job classes took to achieve pay equity and that three female job classes remain to have yet achieved pay equity, the Tribunal assumes that these payments were not done in accordance with subsection 13(3) of the Act.

87. However, the Act establishes a self-regulatory process for pay equity compliance. A pay equity plan is deemed approved once an employer and its bargaining agent agree to the plan and the first pay equity adjustments are made. This means that employers do not have to send their plan to the Commission for approval. It is the absence of complaint to the Commission that has pay equity plans deemed approved by the Commission. Section 14(5) of the Act states:

When a pay equity plan has been executed by an employer and a bargaining agent, the plan shall be deemed to have been approved by the Commission and, on the day provided for in the plan, the employer shall make the first adjustments in compensation required to achieve pay equity.

88. An unfortunate, but foreseeable outcome of this deemed approval model is that pay equity plans can be non-compliant with the Act, and still be “deemed approved” by the Commission. A good example of this is the notorious “$1.50 plan” that was implemented by hundreds of employers in the health care and long-term care sectors, where it is understood that the pay equity plans did not use a gender-neutral comparison system, which is a fundamental statutory requirement of every pay equity plan. This concept was noted at paragraph 18 of The Corporation of the Township of Emo v. Pay Equity Office, 2023 CanLII 96980, where this panel held:

A result of a self-regulatory, deemed approved model can be that a deemed approved plan is revealed to be flawed or otherwise does not comply with the Act in some way. An example of this is found in the Participating Nursing Homes, 2021 ONCA 148 line of cases, which started from the fact that the Tribunal found that the “$1.50 Plan” which was deemed approved in the early 1990s was not compliant with the Act as it did not use a gender-neutral comparison system (“GNCS”). However, the remedy was not for the Tribunal to declare that pay equity was never achieved because the deemed approved plan contained errors, as that would have been inappropriate because the plan was deemed approved by the Commission by operation of the Act. Instead, the Tribunal’s, and Court’s, direction was to create an amended plan that was compliant with the Act. This is the appropriate direction during the maintenance phase if the Commission or the Tribunal is not satisfied that pay equity has been maintained because an employer was unable to demonstrate how a deemed approved plan remains currently applicable.

89. In this case, there are no references to OPSEU raising an issue with Craigwood about the requirements of subsection 13(3) of the Act at any time prior to the instant application. There are no notes or evidence in the Agreed Statement of Facts or witness statements, and there are no records of this issue being raised by OPSEU before the Review Officer. The only record of this obligation is actually in Mr. Ashbourne’s February 16, 2018 email to OPSEU confirming how it was changing its method of making pay equity adjustments (after which there appears to be no disputes between the parties).

90. The Tribunal finds that the time for objecting to the pay equity plan because it did not contain references to subsection 13(3) of the Act expired in 1995 or 1996 after the pay equity plan was negotiated and pay equity adjustments were made (presumably not in compliance with subsection 13(3) of the Act. After the plan was deemed approved, Craigwood made its pay equity adjustments without complaint as per the terms of the plan for another decade. If it is now forced to go back in time to review whether its pay equity adjustments were in accordance with subsection 13(3) of the Act, it has suffered the prejudice that it was unable to adjust its methods as described above under the heading “Prejudice of Delay”.

91. The Tribunal disagrees with OPSEU that the allegation that Craigwood did not comply with subsection 13(3) of the Act is purely a legal argument. There are important facts that need to be known about the plan and how payments were made, including determining the quantum of pay equity adjustments, and determining what female job classes would have been the lowest paid female job class had the negotiated plan considered the requirements of section 13(3) of the Act in each year of the pay equity plan going back to 1995. Someone would need to be able to explain those facts to the Tribunal and given that the facts relevant to the dispute go back almost three decades, it is unreasonable to find that no prejudice has occurred to that exercise.

92. However, in the instant application, there remain three female job classes that still have not achieved pay equity. Had pay equity been achieved this issue would likely have been moot. Now that the issue has been raised, given that there is no reference to the requirements of subsection 13(3) of the Act in the pay equity plan, the Tribunal cannot knowingly permit this omission to continue unaddressed while three female job classes still have not achieved pay equity three decades after the plan was negotiated and deemed approved.

93. As set out in The Township of Emo, supra, the appropriate remedy is to amend the plan on a go forward basis. Accordingly, the Tribunal directs the parties to read in the requirements of subsection 13(3) of the Act into the plan with respect to the three female job classes that have not achieved pay equity as of the date the application was filed with the Tribunal, which is the first occurrence of OPSEU raising this issue with Craigwood. It does not serve the purpose of the Act to require this issue to be remitted back to Review Services when the outcome of Review Services’ decision is predetermined (which is that a pay equity plan which does not conform to the requirements of the Act must be amended to conform to such requirements). It appears that the parties may have already read in this requirement as referenced in Mr. Ashbourne’s February 16, 2018 email so this direction may be moot from a practical perspective.

94. Since the error of not referencing subsection 13(3) of the Act in the deemed approved plan falls on both parties and remained unaddressed by either party for well over two decades, the Tribunal finds that the appropriate remedy is to amend the plan as of the date this issue was raised to the Tribunal.

95. Given the finding above, the Tribunal does not need to consider Craigwood’s argument that the Tribunal does not have jurisdiction to consider the allegation because it was not first raised with Review Services.

Subsection 13(4) - 1% of Total Payroll

96. Section 13(4) of the Act states:

The first adjustments in compensation under a pay equity plan are payable as of the date provided for in clause (2) (e) and shall be such that the combined compensation payable under all pay equity plans of the employer during the twelve-month period following the first adjustments shall be increased by an amount that is not less than the lesser of,

(a) 1 per cent of the employer’s payroll during the twelve-month period preceding the first adjustments; and

(b) the amount required to achieve pay equity.

97. This language is directly reflected in the parties pay equity plan as set out above.

98. OPSEU alleges that Craigwood failed to make pay equity adjustments in accordance with the requirements of the plan and Act.

99. Craigwood’s position is that it has made the proper pay equity adjustments and that OPSEU’s allegation should be dismissed for delay.

100. In the Tribunal’s view, there are two distinct time periods with respect to this allegation. The first period is the 2008 to 2012 period which is covered by the parties’ settlement to resolve the 2008 to 2012 round of collective bargaining. The second period is 2013 to 2017.

101. With respect to the 2008 to 2012 period, the parties explicitly addressed pay equity adjustments during a contentious round of collective bargaining. The parties signed off on a Memorandum of Settlement. Craigwood made the payments pursuant to that settlement. The complaint to the Commission was not filed until 2019.

102. The reason for the delay OPSEU provided was that “meaningful negotiations” took place during the following seven years. As set out above, the Tribunal does not accept this justification based on the facts of this cased. At best, the evidence shows that OPSEU periodically asked for information about pay equity, and responses were provided by Craigwood.

103. The fact that pay equity was expressly addressed by the parties in the 2012 round of collective bargaining is important because the context in which the collective bargaining took place and the agreements made during those negotiations are important contextual facts. Once the collective bargaining was completed and the payments were made, it is reasonable to conclude that Craigwood believed that there were no further issues relating to pay equity for those 2008 to 2012 years. In fact, Mr. Guider sent an email on July 7, 2013 to Mr. Liehmann saying they “do not see any reason to object to making those pay equity adjustments and this will be some good news for employees to receive mid summer”.

104. After that communication, it appears that OPSEU asked for pay equity information, and Craigwood provided it. It appears that the first communication about the section 13(4) issue was from OPSEU on July 11, 2014. While it appears that OPSEU contemplated filing an application with Review Services in 2014 and/or 2015, it did not do so for another four to five years. As such, OPSEU’s inaction in filing a complaint with the Commission led Craigwood to continue to believe either that its payments for 2008 to 2012 were in accordance with their agreement and pay equity plan, or that OPSEU was not going to file a complaint.

105. The 2012 settlement is particularly important because there is obviously a significant amount of context that surrounded the negotiations and the settlement that included pay equity adjustments. This is exemplified by the documents filed as exhibits in this proceeding, attached to the Agreed Statement of Facts and Mr. Guider’s witness statement. Viva voce evidence would be certainly required to explain each of the parties’ positions about the settlement, the negotiations leading up to the settlement, how the payments were made, and how the pay equity adjustments were recorded. Unfortunately, it appears that most of the key witnesses for this period are not with Craigwood or OPSEU any longer. As set out above, the four key witnesses for Craigwood have left the organization, and OPSEU’s pay equity representative during this time, who would have been in the best position to explain to the Tribunal why a complaint was not filed during the 2012 to 2015 period, has passed away.

106. Accordingly, the Tribunal finds that it is prejudicial to Craigwood to have to call evidence and defend its position of this nature after such a significant delay.

107. However, in the Tribunal’s view, the period from 2013 to 2017 is different. During this period, there were no agreements or Minutes of Settlement filed with the Tribunal that addressed pay equity which appear to require additional context. In 2018, Craigwood altered the way that it provided pay equity adjustments such that OPSEU does not take issue with pay equity adjustments from 2017 onwards.

108. OPSEU filed its application in 2019, shortly after Mr. Ashbourne provided a response to OPSEU and it was clear Craigwood was not going to agree with OPSEU’s requests about pay equity issues that it wanted to address.

109. Once an application is filed with Review Services, the obligation to maintain records relevant to the dispute crystallizes. The period from 2013 to 2018 falls within the period Craigwood was required to preserve their pay records by the Income Tax Act and Employment Standards Act. At this time, Mr. Ashbourne and Ms. Hogan were still employed by Craigwood and both helped prepare Craigwood’s response to the Review Officer.

110. The fact that Craigwood changed their email and payroll systems after the application for Review Services was filed does not assist Craigwood with respect to its delay argument for the 2013 to 2017 period. It cannot be that an employer could avoid their pay equity obligations by choosing to change its email or payroll systems after an application was filed and then later arguing that it is prejudiced in defending the application because it changed its system and may have lost access to relevant records. Any such interpretation would be inconsistent with the purpose of the Act. While it is foreseeable that over time, technology changes and employees retire, once a complaint is filed with the Commission the obligation to preserve records is triggered and the Tribunal is not persuaded that an employer’s choice to change their processes after a complaint is filed with the Commission causes prejudice to the point where employees become disentitled to potential pay equity adjustments.

111. Likewise, the fact that Ms. Hogan and Mr. Ashbourne have left the organization since the application is not a persuasive reason to dismiss this application for the 2013 to 2017 period. Applying the same reasoning as above, it cannot be that an employer could terminate the employment of key employees after an application is filed, and then claim prejudice to avoid its obligations under the Act.

112. Pay records are clearly relevant to the issue of whether pay equity adjustments were paid in accordance with the pay equity plan and there is no evidence that Craigwood does not have access to records that it can use to compile this information. It appears that it has already done so, as spreadsheets were prepared and provided to the Review Officer. The determination about when delay becomes prejudicial as it pertains to records is made on a case-by-case basis, and in this case, this factor was taken into consideration during the earlier time periods when the parties address pay equity in negotiations (2006 – 2012), but the Tribunal finds that the 2013 to 2017 period does not suffer the same degree of prejudice to render the hearing unfair such that it constitutes an abuse of process.

113. The issue of whether Craigwood made its payments in accordance with the pay equity plan in the amount of 1% of total payroll appears to be a mathematical exercise of determining whether the adjustment provided is in accordance with the formula set out in the pay equity plan. It does not appear from the evidence before the Tribunal that there are the same kinds of contextual factors where the parties have different interpretations of what happened as with the 2006 to 2007, and 2008 to 2012 settlements, that necessitates the same kind of viva voce evidence and determinations of witness credibility.

114. Likewise, since the 2013 to 2017 period appears to be mainly a mathematical exercise, if Ms. Doucet is unable to explain to the Tribunal how the pay equity adjustments were calculated in the 2013 to 2017 years, there is no suggestion that Ms. Hogan or Mr. Ashbourne would not be available to be summonsed to explain how the payments were provided. While the Tribunal understands that it may be that going through pay records to determine the quantum that female job classes were paid, and whether it complies with the pay equity plan could be laborious for the employer, this is an aspect of being a party to an adjudicative proceeding before the Tribunal and it is not a reason why the Tribunal would dismiss an application for an abuse of process.

115. The Tribunal has considered the two- and one-half year delay while the file was with Review Services and finds that this delay is not sufficient to cause an abuse of process for the years 2013 onwards. During this time, the parties were actively considering and compiling pay equity data.

116. The Tribunal has considered the 17-month delay between the Notice of Decision and when the instant application was filed. While the Tribunal is not persuaded that counsel’s inability to attend work for approximately 60 days in the 17-month period is a good justification for why this application could not have been filed earlier, the Tribunal does not find that it is a significant enough delay to cause an abuse of process such that this application should be dismissed in its entirety.

Conclusions and Directions

117. The Tribunal finds that actual and presumed prejudice has occurred because of the delay in this case for the periods of 2006 to 2012. The delay is excessive, the reason for the delay is not persuasive, the respondent did not contribute to the delay, and the respondent has suffered actual and presumed prejudice because of the delay.

118. For the reasons set out above, the Tribunal declares that:

a) OPSEU’s allegations concerning whether pay equity adjustments were made in 2006 and 2007 are dismissed pursuant to section 23 of the SPPA;

b) the Tribunal declares that OPSEU’s allegations that pay equity adjustments were not made pursuant to subsection 13(3) of the Act are dismissed pursuant to section 23 of the SPPA;

c) The Tribunal declares that the parties must read in section 13(3) of the Act with regards to any pay equity adjustments made as of the date this application was filed, if not done so already;

d) OPSEU’s allegations that pay equity adjustments were not made in accordance with subsection 13(4) of the Act and the pay equity plan for the years 2008 to 2012 is dismissed pursuant to section 23 of the SPPA; and

e) OPSEU’s allegations that pay equity adjustments were not made in accordance with subsection 13(4) of the Act and the pay equity plan for the years 2013 to 2017 shall proceed to a hearing on the merits.

119. The next hearing date in this matter is set for April 2, 2025. To ensure that the parties are prepared for the hearing date, the Tribunal directs:

a) By no later than December 2, 2024, OPSEU will finalize its request for production and provide it to Craigwood and, at the same time, file it with the Tribunal;

b) By no later than February 3, 2025, Craigwood will provide the requested documents to OPSEU. These documents do not have to be filed with the Tribunal at this time;

c) By no later than February 24, 2025, OPSEU will file with the Tribunal, and provide a copy to Craigwood, a signed witness statement for any witness it intends to call;

d) By no later than March 24, 2025, Craigwood will file with the Tribunal, and provide a copy to OPSEU, a signed witness statement for any witness it intends to call;

e) By no later than March 28, 2025, the parties shall file any documents they wish to rely upon with the Tribunal. The parties are encouraged to file a joint book of documents if possible.

120. If either party requires a summons to witness in this matter, they should contact PEHTSummons@ontario.ca forthwith.

121. If either party has difficulty obtaining cooperation from a witness after receiving a summons to witness, they are to write to the Tribunal as soon as such difficulty occurs.

122. If the parties agree that viva voce evidence is not necessary and they are of the view that an agreed statement of facts can provide the evidence required by the Tribunal to determine the outstanding issues, they are to write to the Tribunal by February 3, 2025. Included in the correspondence shall be a proposed schedule for filing the Agreed Statement of Facts.

123. If there are any issues between the parties regarding any of the directions set out above, they are to advise the Tribunal in writing immediately so that it can be addressed promptly.

124. This panel is seized.