Service Employee International Union (SEIU), Local 1 Canada v. Orillia Soldiers Memorial Hospital, 2024 CanLII 93095

PEHT Case No: 1129-23-PE

Service Employee International Union (SEIU), Local 1 Canada, Applicant v Orillia Soldiers Memorial Hospital, Respondent

BEFORE: M. David Ross, Chair; Patricia Greenside and Stephen Roth, Members

DECISION OF THE TRIBUNAL: September 10, 2024

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

2The application arises from a Review Officer’s decision dated June 4, 2021. The original complaint was filed with Review Services on September 11, 2017. This application was filed on August 8, 2023.

3The applicant filed an arbitration decision dated May 3, 2022 with its application. In that decision, it appears that the applicant filed a grievance over issues that are within the exclusive jurisdiction of the Tribunal. Section 30(1) of the Act states:

The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes.

4The arbitrator deferred the pay equity issues to the Tribunal. At paragraphs 82 and 83 of that decision, the arbitrator held:

In the case before me a decision has already been received from the review officer and there is no agreement between the parties that a hearing before the PEHT would result in delays. The Union referred to the well documented and extremely slow pace of the PEHT and the PEC. The Hospital, however, did not concede that arbitration would be more expeditious alleging instead that a hearing before the PEHT would be more efficient. I am not in a position to know, if the Union had filled for a hearing with the PEHT upon receipt of the officer’s decision, how long it would have taken for the proceeding to commence. Furthermore, I do not know how long the matter would take to be heard by the PEHT should the Union choose to now apply or whether that tribunal would accept jurisdiction due to the time delay. Without agreement of the parties and/or evidence of delays in proceedings before the PEHT timeliness/efficiency is not a factor in the exercise of my discretion.

Based on a careful consideration of the circumstances of this case and in particular, the involvement of the PEC in the issues, I have decided to defer the pay equity issues raised by the grievance to the PEHT. The Union has the right to apply to the PEHT to have their issues considered. In the event that the Union makes an application to the PEHT which is not considered due to time limits or for any other reason, I reserve jurisdiction to hear and determine the pay equity issues on their merits. Additionally, unless the PEHT has assumed exclusive jurisdiction, I reserve jurisdiction to hear and determine the issues on their merits, if there is undue delay in the scheduling of proceedings before the PEHT, which delay is not attributable to the Union. Further, in the event that a decision is made either by the PEHT or at arbitration that leaves unresolved any issues arising out of Article 25:03 of other provision of the collective agreement, I retain jurisdiction to deal with any such issue.

5However, it is unclear to the Tribunal what the arbitrator means by “reserv[ing] jurisdiction to hear and determine pay equity issues on their merits”. The Tribunal confirms that it has exclusive jurisdiction over this dispute pursuant to section 30 of the Act. The dispute was filed with Review Services and then an application was filed with the Tribunal in accordance with the Act.

6Notwithstanding the applicant’s submissions to the arbitrator about its concern about delay if it proceeds to the Tribunal, the applicant waited a year and three months, after receiving the arbitration decision. This was over two years from the date of the Review Officer’s decision, and over six years from the date of its original complaint to file this application with the Tribunal.

7Response and reply pleadings were filed on October 11, 2023, and October 27, 2023 respectively (extensions to the response and reply filing dates were granted on consent of the parties). The parties appeared before the Tribunal on January 15, 2024, for a pre-hearing conference.

8At the prehearing conference, the parties agreed to timelines for filing witness statements and submissions for raising any procedural issues to the Tribunal. At the prehearing conference, the parties requested a second pre-hearing conference for May 27, 2024. The Tribunal scheduled that date to be a Case Management Hearing with this panel which is scheduled to hear the merits of the case.

9At the request of the parties, the May 27, 2024 date was adjourned. The parties explained that they wanted time to attempt to settle this matter. The deadline for filing witness statements and submissions was extended from May 3, 2024 to June 17, 2024.

10On June 14, 2024, the parties again wrote requesting an extension to the deadlines. A mediation date was also scheduled for July 19, 2024 with the Vice-Chair Sanderson, who had presided over the prehearing conference. At or after the July 19, 2024 mediation date, the parties informed the Tribunal that they estimated that the matter would settle by the end of August.

11It is now September 10, 2024. The deadlines set by the parties have passed and the Tribunal has not received any request to extend deadlines or to establish a new schedule. The Tribunal was advised by the mediator that his attempts to get information from the parties about the status of their settlement discussions have gone unanswered by both parties.

12The first hearing date in this matter was scheduled for September 19, 2024. The parties scheduled five dates in January 2024 for September and October to ensure that the matter could be heard. It is now obvious that starting the hearing on the merits is not possible on September 19, 2024 due to the parties’ noncompliance with the procedural directions and the timelines they requested to be extended.

13While the Tribunal always encourages parties to resolve disputes between them, it is not acceptable to ignore procedural directions which causes delay to the Tribunal’s processes. In this case, the parties were fully aware of the Tribunal’s expectations if they did not resolve the matter between themselves.

14The Tribunal has been clear in its jurisprudence that trade unions hold a very important role in ensuring that pay equity has been maintained, and that is to raise and pursue their concerns in a timely manner. Unnecessary delay does not advance the purpose of the Act. While the Tribunal does not know the reasons for the delay in most cases, including this one, applicants have the onus of proof in most cases before the Tribunal and the obligation to ensure that they are not responsible for causing additional, unnecessary delay when pursuing their application. At a bare minimum, the Tribunal expects to receive communication from the parties when deadlines approach if there is concern that they will not be able to make them. In cases where an applicant does not comply with procedural directions and appears content to not pursue their application, it raises the question to the Tribunal about whether the applicant is abandoning the application.

15Accordingly, Tribunal directs the parties to make submissions on two issues:

1. Whether this application has been abandoned or otherwise should be terminated because of the applicant’s failure to file its witness statements or submissions in accordance with the Tribunal’s directions and

2. The scope of the Tribunal’s jurisdiction in this matter in consideration of paragraph 83 of the labour arbitrator’s comments about the potential of having jurisdiction to hear pay equity matters in the May 3, 2022 arbitration decision.

16The Tribunal will hear the parties’ submissions on these issues on October 2, 2024, which was one of the dates previously scheduled to hear the merits of this matter.

17The September 19, 23, October 3, and 21, 2024 hearing dates are hereby cancelled. If this matter proceeds beyond October 2, 2024, the Tribunal will set a new submission schedule and hearing dates at that time.

18The Tribunal places the parties on notice that if one or both of the parties do(es) not attend or make submissions on these issues, that the Tribunal may decide the issues without further notice to the parties.

19This panel is seized.