Pay Equity Hearings Tribunal
PEHT Case No: 2001-18-PE
Applicant: Glen Hill Terrace Christian Homes Inc. Respondent: Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110 Intervenors: Pay Equity Office, Participating Nursing Homes, Ontario Public Service Employees Union, Attorney General on behalf of the Crown in Right of Ontario, Equal Pay Coalition and the Ontario Federation of Labour, Service Employees International Union, Local 1, Ontario Agencies Supporting Individuals with Special Needs, Ontario Long Term Care Association, and Ontario Nurses' Association
Before: M. David Ross, Chair
Decision of the Tribunal: December 19, 2024
1This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”).
2Section 4.2 of the Statutory Powers Procedure Act permits a single presiding officer to decide this procedural or interlocutory matter.
3By decision dated July 15, 2024, the Tribunal set out a process for how it was to receive witness evidence and expert reports. Given the number of parties involved in this proceeding, the Tribunal directed the parties to identify whether they wished to cross examine any of expert reports.
4At the outset of this decision, the Tribunal confirms that each party reserves their right to cross-examine the experts on any information or evidence from the expert that was not contained in the respective report filed with the Tribunal.
5The respondent filed expert reports on behalf of Dr. Pat Armstrong and Dr. Richard Shillington. As per the Tribunal’s September 18, 2024 decision, the only party that indicated that they want to cross examine these expert reports was the applicant.
6The Pay Equity Office filed an expert report from Dr. Parbudyal Singh.
7CUPE, ONA and OPSEU filed submissions indicating that they wished to cross examine Dr. Singh in compliance with the Tribunal’s directions pursuant to its July 15, 2024 decision.
8SEIU filed submissions suggesting that it was reserving its right to confirm whether it wished to cross examine until after reply submissions are filed. This is not in compliance with the July 15, 2024 decision. If the SEIU wishes to cross examine Dr. Singh’s expert report, it shall confirm as such to the Tribunal by no later than December 23, 2024.
9The applicant and the Participating Nursing Homes filed near identical submissions indicating that they wish to cross examine the Pay Equity Office’s expert Dr. Singh.
10The applicant in its submissions informed the Tribunal that it has not delivered its submissions to the respondent or intervenors. The applicant submitted that it is procedurally unfair and “arguably prejudicial” to reveal a plan for cross examination, and it could not locate precedent in the Tribunal’s case law to support the direction.
11By letter dated later on December 17, 2024, CUPE requested disclosure of the applicant’s September 24, 2024 and December 16, 2024 submissions. The basis of CUPE’s submission is that it is procedurally unfair to allow certain parties to file ex parte submissions, and not allow (or have provided the opportunity to) other parties.
12Also on December 17, 2024, the respondent replied to CUPE’s submissions regarding filing submissions that were not copied to the other parties. The applicant did not rely on any authorities in its submissions to support its assertion that the Tribunal’s directions violated any principles of natural justice. The Tribunal has considered the submissions.
13The Tribunal agrees with CUPE on this point. The Tribunal also does not accept the applicant’s submission that identifying general topics they wish to cross examine on is a violation of procedural fairness. The Tribunal has not required any party to “reveal its plan for cross examination” in any way that is “arguably prejudicial” to the applicant. Conversely, permitting a party to file submissions without copying the other parties would affect the procedural fairness of a proceeding.
14It is well established that submissions made to the Tribunal about the proceeding must be provided to the other parties to the processing. If the applicant wished to seek consent to file ex parte submissions pertaining to the cross-examination of expert reports, it could have raised those to the Tribunal, copying the other parties, in advance of the deadline, and ask the Tribunal either clarify, revise or confirm its direction. It did not. If the applicant had concerns with this aspect of the July 15, 2024, decision, it could have raised it in its request to reconsider that decision filed on August 13, 2024, or anytime prior to filing the submissions. It did not.
15Section 25.0.1 of the SPPA provides the Tribunal with the power to determine it procedures and practices that apply in a particular proceeding:
A tribunal has the power to determine its own procedures and practices and may for that purpose,
(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and
(b) establish rules under section 25.1.
16The July 15, 2024, direction to the parties to identify the aspects of an expert report that they wish to cross-examine a witness about is to allow the Tribunal to manage its proceeding efficiently and effectively. Contrary to the applicant’s submission that there are no precedents for these types of directions, it is common for the Tribunal to direct or facilitate agreement in Pre-Hearing Conference Memorandums of Agreement to file witness statements (including where a party is proceeding second in a case) in advance of a proceeding and to file statements of agreed/not agreed facts which require the parties to set out the basis for the disagreements so the Tribunal and parties have a good understanding on where the parties are apart on the factual and evidentiary issues in a proceeding. This is different than many other forms of adjudication, specifically in civil actions, and like some other adjudicative tribunals, but different does not render a process unfair.
17In the Tribunal’s view, setting out the nature of potential points of disagreements on issues that may be material to the outcome of a proceeding is not prejudicing any party. It is a means of identifying which facts or issues may be challenged to allow the parties and the Tribunal to better understand the evidence, and for the Tribunal and parties to focus their attention on those issues, as opposed to facts or evidence that are not in dispute. This increases the efficacy and efficient of a proceeding, especially one as complex as the instant case.
18The applicant filed submissions with the Tribunal making those submissions to be part of the adjudicative record. Section 1(2).3 of Tribunal Adjudicative Records Act, 2019 (“TARA”) includes written submissions filed with the tribunal in respect of a proceeding before the tribunal. As such, other parties to a proceeding are entitled to those submissions and could have chosen to obtain those records through a request under TARA.
19In any event, the topics that the applicant has identified in its submissions are general in nature, in the same way that CUPE, ONA and OPSEU have filed their submissions. The applicant has not been required to disclose “anticipated approaches to cross-examination” or to “disclose a litigation strategy” or anything of that sort as it alleges. In fact, CUPE’s listed topics in its December 16, 2024, submission appear to the Tribunal to be much more detailed that what the applicant has identified in its September 23, and December 16, 2024 submissions.
20If the applicant continues to believe that identifying topics of an expert report that the parties wish to cross examine the experts about creates an unfairness, tarnishes the value of the expert report and the expert’s evidence, or that the Tribunal should not give much weight to the expert report, they are free to make submissions to that effect in their reply submissions, and oral submissions in this matter.
21Accordingly, the Tribunal directs the Registrar to provide copies of the applicant’s September 23 and December 16, 2024 submissions to the other parties in this proceeding forthwith.
22Lastly, the Pay Equity Office has been requested to provide some disclosure regarding its expert witness. The Tribunal trusts that the parties will work together to resolve these issues promptly (with some allowance given because of holiday schedules).
23In the July 15, 2024 decision, the Tribunal indicated that cross-examinations may have to occur over the holiday break. The Tribunal can confirm for the parties that nothing will be scheduled from December 24, 2024 to January 3, 2025.
24The Tribunal will issue its directions regarding the dates and form of cross examination in due course.
“M. David Ross” M. David Ross, Chair