Glen Hill Terrace Christian Homes Inc. v. Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110, 2024 CanLII 46349

PEHT Case No: 2001-18-PE

Between:

Glen Hill Terrace Christian Homes Inc., Applicant

Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110, Respondent

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, Intervenors

BEFORE: M. David Ross, Chair

DECISION OF THE TRIBUNAL: May 15, 2024

Decision

This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”).
Section 4.2 of the Statutory Powers Procedure Act permits a single presiding officer to decide this procedural or interlocutory matter.
By decision dated September 15, 2023, the Tribunal directed written submissions to be filed on the nature and scope of the interventions in this matter. The Tribunal is appreciative of the thoughtful submissions filed by the parties and intervenors.
The issue before the Tribunal in this case is to determine what processes and procedures should be directed to ensure that female job classes at Glen Hill Terrace Christian Nursing Homes (an employer that required the proxy method) continue to have access to male comparators for the purpose of pay equity maintenance. The reason why this issue was opened to the community for interventions is because of the Court of Appeal’s direction to the Tribunal in Participating Nursing Homes, 2021 ONCA 148 to:

[…] to specify what procedures should be used to ensure that those employees, represented by the Unions, who have established pay equity through the proxy method, will continue to have access to male comparators to maintain pay equity.

This is the first case that has returned to the Tribunal where it must specify such procedures for the parties, and it is important to the Tribunal to ensure that it has sufficient information and viewpoints from the community, before issuing a decision that could serve as a blueprint for the procedures directed in subsequent matters that involve the same issue.
The Tribunal agrees with the position that the submissions in this matter should be focused on the fact pattern that is currently before the Tribunal. The current fact situation is that the applicant and the respondent have already completed the steps leading up to seeking a proxy comparator:

the list of job classes in the respective CUPE bargaining units;
the GNCS and weightings; and
the rating results and rationales for the evaluations of the female job classes in the CUPE bargaining units.

It also appears from the submissions that the seeking and proxy employers are identified, so the Tribunal does not need to determine which entity should be the proxy employer in this case, or what to do if there are challenges to identifying the proper proxy employer.
Therefore, in this case, the Tribunal is mostly interested in submissions about the process and procedure that should be implemented after the parties have identified the proxy and seeking employers.

Scope of the Interventions

The Tribunal is mindful of the balance between ensuring that the intervenors have a substantive right to participate in this proceeding (no party objected to their participation) against unduly lengthening the proceeding before the Tribunal.
In the Tribunal’s view, it will not limit the scope of the written submissions of the intervenors in this matter or provide a page limit for those submissions. However, because the intervenors will have ample opportunity to have their views considered through their written submissions, the Tribunal will set a dedicated amount of the time in which they are attributed for their oral submissions.
Accordingly, the Tribunal will not dictate a page limit for the written submissions, but each of the intervenors will be provided 30 minutes for oral submissions.

The Pay Equity Office

The Pay Equity Office has intervened in this matter. Its intervention was uncontested. Some parties have made submissions specific to the Pay Equity Office’s participation. For clarity, unlike in almost every other case that comes before the Tribunal, the Pay Equity Office has not had the opportunity to weigh in on this issue at first instance. As such, this is not a case where the Pay Equity Office issued a notice of decision or order and is making submissions about its decision to a reviewing Tribunal.
This issue comes before the Tribunal directly because the Court of Appeal directed the Tribunal specifically to determine this issue. In this case, Tribunal File 2001-18-PE, the originating issue was whether a retroactivity date of 2005 was impossible to comply with given the unique fact pattern applicable to these parties. The Review Officer did not consider or contemplate the issue of pay equity maintenance using proxy comparators (and the originating decision was issued before either of the Courts’ decisions in the Participating Nursing Homes, supra).
The Pay Equity Office is the entity responsible for enforcing the Act. As such, it is important that it should have the opportunity to make its submissions about the processes that it believes would best accomplish the purposes of the Act. It will be the regulatory body that has to determine disputes at first instance once the Tribunal has provided its directions, and it can bring a neutral, unique perspective to this issue that other parties may not be able to. The Tribunal is confident that the Pay Equity Office understands its limitations to make submissions regarding processes and procedures and not about desired substantive outcomes.

Witnesses

The submissions filed address the possibility examining witnesses during this proceeding. Some of the parties have submitted that they do not intend to present evidence, as they identified the issue as being a legal one, not factual that would require viva voce evidence. Other parties have alluded in their submissions that they may wish to introduce evidence through witnesses. At this point, the Tribunal cannot anticipate what witness evidence the parties intend to present that will assist it in this matter. As such, the Tribunal will build a process for identifying witnesses into the submission schedule below.
However, given that the issue before the Tribunal is one of process and procedure, opinion evidence of non-experts will be of limited or no value. Therefore, if a party wishes to rely on witness evidence, the Tribunal will require the witness to qualify as an expert witness.
The Tribunal will consider the scope of participation of all parties as it pertains to witnesses, once the witnesses are identified and the Tribunal understands the nature of the evidence that the witness will tender.

Procedural Order

By no later than June 17, 2024, any party wishing to provide witness evidence shall identify any witness, attach a C.V for the witness, summarize their qualifications and why they qualify as an expert in this case, and the nature of the evidence they will be providing.
By no later than July 2, 2024, any party that objects to any of the proposed witnesses as being experts, shall file their objection with the Tribunal. The Tribunal will consider and issue a decision involving any proposed witnesses, including the scope of the intervenors’ right to examine the witness(es) after the July 2, 2024 submissions, if any, are received.
By no later than September 3, 2024, the applicant and the respondent shall file their full submissions, including attaching any relevant documents they wish to rely on, about how they believe the Tribunal should specify the procedures used to ensure that those employees, represented by the Unions, who have established pay equity through the proxy method, will continue to have access to male comparators to maintain pay equity. The applicant and respondent shall attach signed affidavits for the evidence of any witnesses they intend to rely on.
By no later than, December 2, 2024, the intervenors shall file their full submissions, including attaching any relevant documents they wish to rely on, about how they believe the Tribunal should specify the procedures used to ensure that those employees, represented by the Unions, who have established pay equity through the proxy method, will continue to have access to male comparators to maintain pay equity. In these submissions, the intervenors shall also file any responses to the applicant’s or respondent’s submissions, if desired. Any party wishing to rely on expert evidence shall attach their signed affidavit.
By no later than February 3, 2025, the applicant and respondents shall file their replies to each others’ submissions, and any submissions made by the intervenors.
Hearing dates shall be set for March 5 and 6, 2025. The hearing will be conducted by Zoom. The Registrar will provide the Zoom coordinates to each of the parties.
During the March 5 and 6, 2025 hearing dates, the applicant and the respondent shall have a maximum of 2 hours each to make their oral submissions. The intervenors shall have a maximum 30 minutes each to make their submissions. Parties and intervenors who are aligned on certain issues may wish to coordinate their submissions to ensure that the positions they want to convey to the Tribunal are covered within their respective timeframes.

“M. David Ross” M. David Ross, Chair