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: July 15, 2024
[1]. This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”).
[2]. Section 4.2 of the Statutory Powers Procedure Act permits a single presiding officer to decide this procedural or interlocutory matter.
[3]. 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. By decision dated June 12, 2024, the Tribunal provided further clarifications at the request of the applicant.
[4]. This decision addresses the parties’ submissions with respect to the proposed witnesses that were filed on June 17, 2024, and July 2, 2024 pursuant to the May 15, 2024 decision.
[5]. After reviewing the submissions received, it remains apparent that there may be a disconnect between the expectations of some of the parties and the process that is being undertaken in this proceeding.
[6]. This proceeding is closer to a legislature using a consultation process to seek submissions from the public about what should be included or not included in prospective legislation, than it is a quasi-judicial administrative hearing where evidence is tested and weighed, and the Tribunal relies on that evidence to ground its findings when it declares a “winner” between two adversarial parties.
[7]. To use a construction metaphor, what has occurred is that the Tribunal has been directed to design a new plumbing system (the pay equity maintenance process when the proxy method was been used to establish the pay equity plan) for an existing city block (the group of employers that used the proxy method of comparison to establish their plans). The city block however, contains different types of buildings (different categories of employers within the proxy sector) and the system must be retrofitted to meet the requirements of each building. This is not a “new development” where the systems are developed first, and the buildings are then built to ensure they are compliant with the underlying system. In our situation, the new system must adapt to the existing infrastructure.
[8]. As there are a variety of ways that a system can be designed, the Tribunal is seeking input from other professionals in this area to design the first “system” for the first building.
[9]. In an ideal world, the Tribunal would be able to design a perfect plumbing system that can be applied to any building type, regardless of the building specifications, or any of its unique features. However, this is not realistic, and the Tribunal knows that it cannot create a “one size fits all” system that applies perfectly for every situation, especially on a first attempt. In this first case, we have one building (Glen Hill) that requires a new plumbing system.
[10]. What this will require, is the design of the fundamentals of a system, that can be applied, and modified based on the unique specifications of the different buildings. The result should be able to act as a “blueprint” that can be used as a starting point for future plumbing systems and adapted to fit the unique needs of the different buildings.
[11]. An important consideration with any new design, is that it needs to be tested. Before a plumbing contractor leaves a jobsite, they need to run the water through the plumbing to ensure that that water gets from point A to point B and there are no leaks. If there are leaks, then those leaks need to be fixed. When designing a first system, it is important to identify, and then learn from any “leaks” or mistakes/inefficiencies/unforeseen circumstances that occur and affect the system, and to not import them over into future builds.
[12]. Accordingly, since this is a case at first instance, with no precedents, and very little guidance in the Act or from the Courts about what the system must look like, the Tribunal intends to design a system on the smaller scale specific to the specifications of what is before it. In this case, the scale is the fact situation applicable to Glen Hill. The fact situation at Glen Hill is what is before the Tribunal and that is what the Tribunal must address. The Tribunal does not need to address issues in this case that do not apply to Glen Hill. To return to the plumbing metaphor, if there are water issues in a basement because it is significantly below grade, maybe a sump pump or a sewer pump is needed to be included in the system. However, those elements would not be needed in Glen Hill’s building because it does not have a “below grade” element that would require a sewer pump or a sump pump. The Tribunal is deferring the determination of what a sewer or sump pump element would look like until a situation that raises that issue comes before the Tribunal.
[13]. The goal is that once the Tribunal has designed the fundamental elements of the system and tested, the “blueprints” of the system can then be taken by other contractors (ie Review Services, and the community at large since pay equity is, for the most part, a self regulatory process) and applied to the fact situations that come before them. When situations arise that have not yet been considered, those situations can be brought back to the Pay Equity Commission (the Tribunal or Review Services as necessary), those specific issues can be considered on their own facts, and the system can be adapted to account for that specific situation.
The Applicant’s Submissions on Introducing New Fact Evidence
[14]. The applicant has submitted that it intends to call viva voce evidence to provide “factual evidence”. The applicant has proposed to call this evidence to provide further and full submissions about “why the Act does not require maintenance of pay equity by the proxy method comparison”.
[15]. The respondent has submitted that it is an abuse of process to argue at this late-stage that the proxy method does not apply in this case, and that for Glen Hill to revert to a position that it took in 2018 ignores the entire history of the proceedings over the past six years.
[16]. The basis for CUPE’s objection is rooted in the history of this proceeding. The genesis of this case is that the Pay Equity Office contacted Glen Hill on October 12, 2016 to request pay equity information as part of its monitoring program. This request resulted in the Review Services’ Order dated December 14, 2017 (“the Order”). The question that Review Services considered was:
Has the Employer demonstrated it is maintaining pay equity for female job classes represented by CUPE Locals 2225-06/12 and 5110 under Part 1 of the Act using the proxy method of comparison?
[emphasis added]
[17]. As such, from the point of first contact with Glen Hill, this proceeding has dealt with the question of whether Glen Hill had maintained pay equity using the proxy method of comparison.
[18]. The applicant sought review of the Order to the Tribunal in 2018. The grounds of which the applicant sought review were:
i. The Maintenance of the Proxy Method of Comparison as set out in the Review Officer’s Orders are not founded in the Act;
ii. The Proxy Pay Equity Maintenance Methodology as ordered by the officer do not meet the objectives of the Act in redressing system gender discrimination in compensation for work performed by employees in female job classes; and
iii. The Employer does not have the records to comply with the Orders.
[19]. In the application, the applicant did not set out any facts to suggest that Glen Hill had sufficient internal male comparators to use the job-to-job or proportional value method of comparison, and therefore, the reason that the proxy method was not required was because it had internal comparators. Rather, its submissions were consistent with the (now overturned) findings of the Tribunal in the 2016 Decision that maintenance did not require the proxy method of comparison. The pay equity plan used by Glen Hill’s predecessor was the “Participating Nursing Homes $1.50 Plan” which is the same plan as in the Participating Nursing Homes, supra, but with CUPE instead of ONA and SEIU. As such, this is the same issue that was litigated in Participating Nursing Homes, supra.
[20]. This matter was adjourned pending the outcome of the judicial review of the Tribunal’s Participating Nursing Homes, January 21, 2016 Decision. The final decision in that series of judicial reviews and appeals is Participating Nursing Homes, 2021 ONCA 148 (ONCA). Leave to appeal to the Supreme Court of Canada was denied.
[21]. In the Participating Nursing Home, supra, decision, the Court held “that ongoing access to male comparators through the proxy method is required to maintain pay equity”. At paragraph 84 of Participating Nursing Homes, supra, the Court of Appeal’s view on this issue was made clear:
…While the Tribunal's reasons are transparent and intelligible, there is nothing in the Act that would justify eliminating a male comparator for maintaining pay equity in establishments where the proxy method was used to establish pay equity. In my view, the only reasonable interpretation of the Act is that it requires the use of the proxy method in maintaining pay-equity-compliant compensation practices in such establishments.
[emphasis added]
[22]. At paragraph 3 of Glen Hill Terrace Christian Homes Inc., 2021 CanLII 126444 (ON PEHT), the Tribunal confirmed that it was bound to the findings of the Court of Appeal, and the applicant’s position that the Act does not require maintenance of pay equity by the proxy method of comparison was dismissed:
In the August 26, 2021 decision, the Tribunal also deferred the issue of whether the proxy methodology is required with respect to pay equity maintenance. On October 14, 2021 the Supreme Court of Canada dismissed leave to appeal. Accordingly, given the Court of Appeal’s decision in Participating Nursing Homes, 2021 ONCA 148, that position is dismissed as the Tribunal cannot arrive at a conclusion inconsistent with the Court of Appeal’s without violating the doctrine of stare decisis.
[emphasis added]
[23]. Accordingly, the question about whether maintenance required the proxy method of comparison in this case already has been decided. The November 23, 2021 decision was a final decision.
[24]. The Tribunal did not receive a request to reconsider its November 23, 2021 decision by either the applicant or respondent. The November 23, 2021 decision was not judicially reviewed by either party on any ground. The Tribunal notes that Glen Hill was represented by the same firm that represented the Participating Nursing Homes, in the Participating Nursing Homes, supra, cases. As such, it is unreasonable to suggest that Glen Hill was anything but acutely aware of the impact of the Court’s decision to the issues in this case.
[25]. The only outstanding issue remaining for these parties is to receive direction from the Tribunal about how maintenance was to be reviewed/completed using proxy comparators. At paragraph 28, the Tribunal directed:
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.
[emphasis added]
[26]. In April 2023, the parties both confirmed to the Tribunal that they had completed the required steps and were ready for the direction “about how they are to use proxy male comparators for the purpose of pay equity maintenance”. Again, the applicant did not raise any argument that they did not require proxy male comparators, or that there were changed circumstances or anything else that would affect this direction.
[27]. The Tribunal then sought submissions regarding whether this process should be opened for interventions because the issue raised in this case is the same as in Participating Nursing Homes, supra. The applicant’s primary position was to adjourn its case indefinitely pending the Tribunal’s direction to the parties in the Participating Nursing Homes, supra.
[28]. The Tribunal denied adjourning this matter indefinitely because it was, and remains, unknown when the parties in the Participating Nursing Homes, supra, cases will be ready for this issue to be considered in their circumstances. As such, the Tribunal invited requests to intervene from the community since this is the first instance where the process is going to be directed.
[29]. Accordingly, the timeline in this matter was as follows:
this issue was brought before Review Services in 2016;
the Order was issued in December, 2017;
the application was filed in 2018;
the matter was adjourned pending the Participating Nursing Homes, supra, from 2018 to 2021;
the issues in dispute were heard by the Tribunal in 2021;
a final decision was issued on November 23, 2021 as set out above;
the applicant and respondent worked on their pay equity issues from November 2021 to April 2023;
the Tribunal invited interventions in this matter in May 2023;
it is now July 2024, and this application affects employees back to March 1, 2011, when the applicant purchased the homes out of receivership.
[30]. The applicant does not have the ability to relitigate or raise new issues when they have already been long decided. The doctrine of issue estoppel applies. Not only has the applicant and respondent have had this exact issue decided in this case, but all the parties in the Participating Nursing Homes, supra, are present in this proceeding as well. It is well past the point for the applicant to seek to introduce evidence about whether the pay equity maintenance requires the proxy method of comparison in this case.
The Applicant’s Submissions Regarding its Proposed Witnesses
[31]. The applicant has submitted that it intends to call viva voce evidence, but that it could not identify the potential witnesses.
[32]. The applicant did not comply with the Tribunal’s direction to identify the potential witnesses. The applicant’s submission that it has not had enough time to do so is not persuasive. The applicant has been involved in this proceeding for over 6 years, and has been monitoring the Participating Nursing Homes, supra, decision since at least 2018. If the applicant was not in the position to identify potential witnesses by June 17, 2024, it was not because the Tribunal’s process is unfair or “too expedited”.
[33]. The Tribunal also does not agree with the applicant’s submission that viva voce evidence is the “most efficient” way to provide this purported evidence in this case. In the Tribunals experience, witness statements have been much more efficient than viva voce evidence for direct examination. The Rules of Practice were amended to codify the Tribunal’s practice of using of witness statements on January 1, 2024.
[34]. When witness statements are provided in advance, it provides all parties with advance notice of the evidence that is going to be relied upon, and as such they can prepare for their cross-examination, including investigating the evidence, and identify what material facts to the issue are in dispute. The more parties that are involved in a proceeding, the more efficient witness statements become as compared to viva voce evidence.
[35]. In this case, the Tribunal expects to receive varying submissions about how it should direct the process that is to be used. Most, if not all, of the parties have recognized in their submissions that the Act provides no guidance about how pay equity maintenance is to be completed generally, and there is little to no guidance in the Act or jurisprudence about how this is to be done when an employer did not have internal male comparators and used the proxy method of comparison to establish its pay equity plan. The only guidance provided in the legislation is how seeking employers are to identify their proxy employer in Proxy Method of Comparison, O Reg 396/93.
[36]. To be clear, the parties are entitled to make whatever submissions to the Tribunal that they wish it to consider. The Tribunal will consider all submissions before arriving at the process it directs. It will provide the appropriate weight to each of the parties’ submission as they are considered. Again, this is a unique process for the Tribunal where it is seeking submissions from the community about how it should determine a process that it was tasked by the Court to determine.
[37]. The Tribunal has been clear that it is not limiting the page length of the submissions. If the facts are not in dispute, for example, the fact that the 1995 $1.50 Plan was applied at this workplace, that the proxy method was used to establish the plan, that Glen Hill purchased the homes out of receivership in 2011, reference to the collective agreements between the parties, and the work on the amended plan that the applicant and respondent completed between November 2021 and April 2023, those facts can and should be stipulated.
[38]. Therefore, the applicant (and respondent, but it has not indicated that they wish to call viva voce evidence at this time) can attach whatever sworn witness statements they wish to their submissions to set out the fact situation at Glen Hill. Obviously, the persuasiveness of the witness statement can vary. For example, if the applicant provides a witness statement in attempt to introduce new facts about issues that have already been decided, the Tribunal will afford it the appropriate weight.
[39]. Since the applicant did not comply with Tribunal’s direction in its June 12, 2024 decision, and that the proposed nature of the evidence is to introduce fact evidence about issues that have already been decided, the Tribunal is not setting out any procedure for having these purported witness provide viva voce evidence or any cross examination. As set out above, the applicant can file sworn witness statements by the September 3, 2024 deadline to file their submissions. If any issues about cross-examination arise, the Tribunal can consider those issues based on the contents of any such witness statements.
OASIS and OLTCA Submissions
[40]. OASIS has requested to file affidavit evidence about the background of the “developmental services sector generally”. OASIS did not identify who would be providing an affidavit in their submission.
[41]. CUPE, the Equal Pay Coalition and OPSEU have objected to this evidence. They submit that the witnesses are unidentified, and they are not claimed to be experts in their sector.
[42]. The Tribunal agrees with the points made in the objections. As set out above in the plumbing analogy, the Tribunal is building a system for Glen Hill, not the buildings that house the developmental services sector. The Tribunal has made it clear that the scope of the evidence relevant to this proceeding pertains to the fact situation at Glen Hill, and that it is unlikely that it will make comments in obiter about the developmental services sector.
[43]. The evidence OASIS seeks to introduce could be relevant in a case that involves an organization in the developmental services sector, but this is not the time or place to be getting into the detail of that evidence.
[44]. To reiterate what the Tribunal has previously held, the written submissions have not been limited on any party, and the intervenors’ oral submissions are limited to 30 minutes. So, if OASIS wishes to spend the time and resources on submissions about the developmental services sector and include sworn witness statements to highlight its submissions that are relevant to the facts of this case, it is free to do so. However, the Tribunal does not expect any other party to respond to submissions filed that pertain to other sectors, or fact situations that do not pertain to the instant case.
[45]. The OLTCA has proposed filing affidavits on behalf of unidentified witnesses to provide fact on a list of issues it set out in its submission.
[46]. The CUPE, the Equal Pay Coalition and OPSEU have objected to this evidence. They submit that the witnesses are unidentified, and they are not claimed to be experts in their sector.
[47]. As set out above, this proceeding is addressing the fact situation at Glen Hill. Evidence that pertains to issues that does not apply in this case is likely unnecessary. To use an example, the Tribunal does not appreciate how describing bargaining relationships with CLAC, HOPE, IAMAW, IUOE, LIUNA, Teamsters, USW and the UFCW is going to be helpful for a case that involves Glen Hill and CUPE.
[48]. Again, the written submissions have not been limited on any party, and the intervenors’ oral submissions are limited to 30 minutes. So, if OLTCA wishes to spend the time and resources to file submissions about issues that are beyond the scope of the instant case and include sworn witness statements to highlight its submissions that are relevant to the facts of this case, it is free to do so. However, the Tribunal does not expect any other party to respond to submissions filed that pertain to fact situations that do not pertain to the instant case, and the Tribunal is going to provide the appropriate weight to any such submissions.
Expert Witnesses
CUPE’s Expert Witnesses
[49]. CUPE has requested to file expert witness reports on behalf of Dr. Pat Armstrong and Dr. Richard Shillington.
[50]. No objections were received to these expert witnesses. The Tribunal is satisfied with the qualifications of these individuals.
[51]. Accordingly, CUPE shall file the affidavits of these two individuals with their reports, along with their submissions by September 3, 2024.
[52]. If any party wishes to cross examine the expert report of either witness, they shall write to the Tribunal by no later than September 17, 2024. In that letter, the party shall identify the subject matter contained in the report that they wish to cross examine the expert about, and why it is disputed. Those submissions should be as specific as possible. It should not be “wish to cross examine the entire report”. Once the Tribunal has received the submissions requesting to cross-examine the expert, if any, the Tribunal will issue a decision setting out the next steps.
Pay Equity Office Expert Witness
[53]. The Pay Equity Office has requested to file an expert witness report on behalf of Dr. Parbudyal Singh. The Pay Equity Office filed his C.V., the nature of the evidence expected to be provided, and a summary of the reasons why they wish to introduce an export report from this witness.
[54]. The Ontario Nurses’ Association has filed an objection to Dr. Singh being qualified as a witness. No other objections were received.
[55]. The Tribunal has reviewed the Pay Equity Office’s submissions, which includes Dr. Singh’s C.V., a summary of the reasons why the Pay Equity Office seeks to file his expert report, and the nature of the evidence Dr. Singh is expected to provide. The Tribunal considered ONA’s submissions. The Tribunal is satisfied that the Pay Equity Office is entitled to file Dr. Singh’s report in this matter.
[56]. The Pay Equity Office shall file the affidavit with the report, along with its submissions by December 2, 2024.
[57]. If any party wishes to cross examine the expert report of either witness, they shall write to the Tribunal by no later than December 16, 2024. In that letter, the party shall identify the subject matter contained in the report that they wish to cross examine the expert about, and why it is disputed. Those submissions should be as specific as possible. It should not be “wish to cross examine the entire report”. Once the Tribunal has received the submissions requesting to cross-examine the expert, if any, the Tribunal will issue a decision setting out the next steps.
[58]. The parties are put on notice that because of the timeline in this matter, if cross-examination is going to be conducted, depending on availability in mid-to late January, this may occur during the week between Christmas Day and New Years’ Day, or the week following New Years’ Day.
Conclusion
[59]. The Tribunal reiterates that this process is not a traditional adjudicative process undertaken by the Tribunal. It is more like a consultative process where the Tribunal is seeking submissions to consider for a process that it has been directed by the Court to establish.
[60]. The scope of this process is limited to the situation at Glen Hill. Submissions that pertain to issues outside of the scope of this case are likely going to be of limited value, as there is no intention to comment about different situations in obiter.
[61]. Each party is entitled to file whatever submissions they want the Tribunal to consider about what the process should be, with knowledge of the caveat set out in the paragraph above.
[62]. Reports will be entitled to be filed from three witnesses: Dr. Shillington, Dr. Armstrong, and Dr. Singh. CUPE will file the reports of its two witnesses by September 3, 2024. The Pay Equity Office will file its report by December 2, 2024. The reports will be provided to all participants in this case.
[63]. If any party wishes to cross examine any of the reports. They are to provide their submissions about what they intend to cross-examine the witness on within two calendar weeks of September 3, 2024 for CUPE’s witnesses or December 2, 2024 for the Pay Equity Office’s witness.
[64]. No party identified the name of any proposed non-expert witness. As such, the Tribunal is not directing any additional process with respect to these witnesses. If issues arise because of sworn statements attached to submissions, the Tribunal will consider those in due course.
[65]. The timelines set out in the Tribunal’s May 15, 2024 decision are unaffected by this decision.
“M. David Ross” M. David Ross, Chair