PEHT Case No: 2001-18-PE
Glen Hill Terrace Christian Homes Inc., Applicant v Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110, Respondent v 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: June 12, 2024
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 May 15, 2024, the Tribunal issued a decision setting out the timelines for how the parties are to file their submissions that they wish the Tribunal to consider when it is “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” in the instant case. This direction was given specifically to the Tribunal from the Court of Appeal in Participating Nursing Homes, 2021 ONCA 148 (ONCA).
The Tribunal has received letters from the applicant, Glen Hill Terrace Christian Homes Inc. (“Glen Hill”), and a joint letter from the Ontario Long Term Care Association (OLTCA) and Ontario Agencies Supporting Individuals with Special Needs (OASIS) dated June 10, 2024.
This decision addresses the points raised in those letters.
Upon review of the correspondence from the applicant, it may be that there is some disconnect between what the applicant means when it refers to a “hearing on the merits” in its submissions and the Tribunal’s expectations about what will be included in the submissions.
To clarify, the submissions that are being sought in the May 15, 2024 decision will not to determine “merits” of the amended pay equity plan. It is anticipated that after the March 5 and 6, 2025 hearing dates, the Tribunal will issue its procedural direction about how Glen Hill is to use proxy comparators for pay equity maintenance. It is the process that is going to be ordered, not a final determination of the amended pay equity plan retroactive to March 1, 2011.
The respondent stated it correctly in their May 1, 2024 submissions, that this is a process involving legal submissions about what the process should be as more so than calling witnesses to provide factual evidence.
To state it colloquially, the Tribunal is asking the applicant, the respondent, and the intervenors, about how they believe the process of accomplishing pay equity maintenance using proxy comparators should be directed and the reasons for why it believes that is the best way to do so. The “why” portion of that question will have each of the parties setting out various considerations and factors that could affect the process, and their viewpoints on those factors.
The Tribunal expects to receive varying viewpoints and considerations from each of the parties in this proceeding and will consider each of the parties’ submissions in arriving at the process it ultimately directs. The applicant and respondent will then proceed with the procedural directions as they did after the November 23, 2021 decision was issued, which, hopefully, resolves this matter at Glen Hill, and provides a “blueprint” for how such processes can be implemented at other organizations that use the proxy method for comparison going forward.
Without trying to sound artificially flattering, the Tribunal is certain that it will benefit greatly from the submissions from the majority of the leading pay equity law minds in Ontario who are involved in this case.
Therefore, the process set out in the May 15, 2024 decision is not a “hearing on the merits” in the sense that it resolves the merits of the case. The ultimate result should resolve the case once the process is followed, but this step of the proceeding is for the Tribunal to specify the procedure that should be used at Glen Hill, which established pay equity using the proxy method of comparison decades ago.
The Timeline is Not “Expedited”
Both letters suggested that the submission timeline is “fast tracked” or “extraordinarily rushed”. The Tribunal received earlier criticism from the union-sided parties that the process has been unduly delayed because of the timelines set regarding the intervenors and scope of interventions. Now some employer-sided parties criticize the process for being too rushed. It is apparent that the Tribunal has gotten the timelines in this case just right.
The Participating Nursing Homes, supra decision is dated March 9, 2021. Three years have passed since the Court of Appeal decision, and almost all of the intervenors and their counsel/law firms were also involved in that case. The overlap in parties and their respective counsel makes complete sense to the Tribunal as pay equity is a very niche area of law, and the practitioners of pay equity law are very skilled, experienced, and sophisticated in this area. Saying this, it is evident from many of the submissions received with respect to the interventions, that the parties and their counsel have already been thinking about and considering this issue for quite some time.
This is the first case which has returned to the Tribunal to receive directions about how pay equity maintenance using proxy comparators should be done.
On November 23, 2021, the Tribunal informed the applicant and the respondent that “once the parties have completed the steps of the pay equity process internal to Glen Hill, the parties are directed to write to the Tribunal indicating this fact, and the Tribunal will provide direction about how they are to use proxy male comparators for the purpose of pay equity maintenance”.
The applicant and the respondent advised the Tribunal that they were ready for such direction on April 18, 2023.
As this was the first matter to return to the Tribunal on this issue, as stated above, the Tribunal wished to receive submissions from the pay equity community at large on this issue, and invited requests for interventions by decision dated May 19, 2023.
Those requests to intervene were filed by July 7, 2023. Almost a year has passed since as of the date of this decision. Therefore, the applicant and the respondent knew this was going to be an issue considered by the Tribunal for a couple of years, and when no objections to the interventions were received, the intervenors knew they would be filing submissions on this issue as of September 2023.
The applicant and the respondent are not required to file their full submissions until September 3, 2024. The intervenors are not required to file their submissions until December 2, 2024. The parties each have several months to consider and file their submissions.
Accordingly, there has been, and will be, more than ample time for these sophisticated parties and their counsel to consider the issues relevant in this case, and to file their submissions that they wish the Tribunal to consider on this issue. The timeline is not unduly delayed or unduly rushed and balances the need for thoughtful submissions, with the need to ensure that another decade does not pass with the employees at Glen Hill working in female job classes being unsure whether pay equity has been maintained as required by the Act.
Clarification about Paragraphs 7 and 8 of the May 15, 2024 Decision
- The applicant has requested clarification about paragraphs 7 and 8 of the May 15, 2024 decision. Those paragraphs state:
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.
The Tribunal’s comments at paragraphs 7 and 8 arose from the respondent’s statement that the proxy and seeking employers have been agreed to. The respondent submitted in its May 1, 2024 submissions that “(f) there is no dispute between the parties about the applicable proxy employer”.
As such, the Tribunal proceeded on the basis that the applicable proxy employer was agreed since that submission was made less than six weeks ago, and the Tribunal does not assume that the respondent has filed false submissions. If the applicant disagrees with that statement, it should not only address why it disagrees in its submissions but contact the respondent imminently and try to resolve any disagreement as it has been represented to the Tribunal that this fact is agreed.
Additionally, if the applicant is going to take the position that proxy male comparators are not required at all, it must explain in its submissions why this issue has not been raised previously, as this entire expanded process and call for interventions, which the applicant supported, was solely based on the mutual understanding that proxy comparators would be required to determine if pay equity has been maintained at Glen Hill.
Paragraphs 7 and 8 are also meant to provide guidance to the intervenors that the Tribunal wishes to focus the submissions on the fact situation of this case and not hypothetical situations that do not apply to this case.
At paragraph 9 of the May 19, 2023 decision, the Tribunal was clear that the submissions are intended to concern the procedure that should be used in this case:
The Tribunal also agrees with the union and the employer that the Tribunal’s direction about how the maintenance process is completed using proxy comparators could have broad applications and implications for the community at large. As such, in the Tribunal’s view, it is prudent to provide the opportunity for any person or organization to seek intervenor status in this application to make submissions that they wish the Tribunal to consider about what procedure should be directed about how pay equity maintenance using proxy comparators should be completed in this case.
[emphasis added]
- The Tribunal was also clear that the process directed in this case is not necessarily going to be the same in subsequent cases that appear before the Tribunal, but it could provide insight how future processes should be done in subsequent applications. This was reflected at paragraph 9 of the May 19, 2023 decision:
To be clear, the Tribunal has not determined that the process that is to be used with respect to pay equity maintenance using proxy comparators in this application will be the process directed by the Tribunal in other applications that proceed before it. However, it may be that the process directed in this application will provide valuable insight into how this process should be done in subsequent applications.
- To exemplify what kinds of information the Tribunal is referring to in the paragraphs above, OASIS made the following submission in its request to intervene:
OASIS is also uniquely positioned given its sector-wide pay equity experience to make submissions regarding: how to identify the appropriate proxy employer given the passage of time where the original proxy hospital may no longer exist or has amalgamated with a new entity; from a job evaluation perspective, the identification of appropriate key job classes at the proxy employer where they may have changed or been eliminated over time; how to address maintenance where the status of pay equity compliance of the proxy is also unclear; the identification of appropriate comparators in the proxy employers; the appropriate frequency of comparison to the proxy; and the appropriate retroactivity date for application of any new directives for maintenance.
Therefore, in this case, under the current assumption that there is agreement on the proxy employer between the applicant and the respondent, submissions about “how to identify the appropriate proxy employer given the passage of time where the original proxy may no longer exist or has amalgamated with a new entity” would be made in the abstract, as in this case the potential proxy employer has been identified. If this is not the case, the intervenors will have three months to consider that issue and file submissions in response.
Conversely, submissions on issues such as “from a job evaluation perspective, the identification of appropriate key job classes at the proxy employer where they may have changed or been eliminated over time” and “how to address maintenance where the status of pay equity compliance of the proxy is also unclear; the identification of appropriate comparators in the proxy employers; and the appropriate frequency of comparison to the proxy;” are exactly the kinds of issues on what the Tribunal wishes to receive submissions on, as those kinds of issues are foreseeable in this fact situation. To be clear, these issues identified by OASIS referenced above are not the only factors the Tribunal is interested in receiving submissions on, they are just some examples taken from a specific submission in this matter.
Therefore, paragraphs 7 and 8 were intended to provide notice that the Tribunal is mostly interested in considering issues that are foreseeable and applicable in this fact situation at Glen Hill rather than hypothetical or abstract issues that do not directly apply to Glen Hill and its employees, and that it is unlikely that the Tribunal will be making comments in obiter or in the abstract about fact situations that do not potentially affect Glen Hill in this matter.
The issues that may be applicable to an intervenor or an intervenor’s bargaining unit but do not apply to this case are almost certainly more appropriately dealt between those parties in their own proceedings. For example, an issue that applies specifically to over 110 participating nursing homes which bargain together but does not apply to Glen Hill is likely better addressed when the PHN cases return to the Tribunal. Likewise, issues involving identifying an appropriate proxy employer for a developmental service agency because certain hospitals amalgamated into a multi-hospital health system, may not be applicable to the situation at Glen Hill, and again better addressed in a subsequent application if required.
However, the Tribunal was clear in its May 15, 2024 decision that it was not going to limit the written submissions filed by any party, so they are free to make whatever submissions they wish for the Tribunal’s consideration.
Evidence
The June 10, 2024 letters raise issues with respect to the scope of evidence set out in the May 15, 2024 decision.
At this point, the Tribunal continues to remain in the dark about what potential witnesses any of the parties or intervenors intend to rely on. The reason why the Tribunal did not address the scope of the intervenors’ rights with respect to witnesses in the May 15, 2024 decision is because it does not know what evidence is intended to be called through witnesses. This remains to be the case.
The Tribunal expects much of the foundational evidence the parties wish to rely on in this case to be documentary based, presumably business records, filed with the applicant’s or the respondent’s submissions. For example, the Tribunal expects that the applicant and the respondent will file their documents that pertain to the work they have completed on the amended pay equity plan up to the point they returned to the Tribunal. This includes the job evaluations/ratings, identification of job classes, gender dominance, etc.
The applicant submitted that it “intends to primarily call viva voce evidence from fact witnesses, which is not clearly accounted for within the Procedural Order”. Again, the Tribunal does not currently appreciate who the applicant intends to call, what evidence they intend to provide, and why viva voce evidence is necessary? If the applicant remains intent on calling witnesses, it should set out the names of the witnesses and the nature of the evidence they would testify to by the June 17, 2024 date, and the Tribunal can consider the issue along with any potential expert witnesses after July 2, 2024.
OASIS and OLTCA raised an issue with respect to expert versus layperson evidence. The Tribunal notes that in their March 1, 2024 submissions, those organizations only refer to calling “expert evidence if determined appropriate by the Tribunal and make full legal submissions”, so the Tribunal is unclear what the issue is with respect to OASIS and OLTCA.
Lastly, the May 15, 2024 decision only requires the parties to identify a proposed expert and the nature of the evidence they are expected to provide. The actual evidence/report is not required on June 17, 2024.
Again, the Tribunal remains in the dark about whether any witnesses or experts are intended to provide evidence about any issue in this case. As set out above, the Tribunal expects this process to involve mainly legal submissions about how it should order a pay equity maintenance process that uses proxy male comparators. The Tribunal has not, and is not going to make decisions in the abstract or hypothetical, and, as such, has provided a deadline to the parties to identify witnesses so that the Tribunal can consider any issues that pertain to witnesses in advance of the parties’ submissions being filed.
Accordingly, the timelines and process set out in the May 15, 2024 decision are unaffected by this decision.
“M. David Ross” M. David Ross, Chair