1. Making an Application to the Pay Equity Hearings Tribunal

GENERAL

The Pay Equity Hearings Tribunal is the adjudicative branch of the Pay Equity Commission. It is a quasi-judicial administrative tribunal with final and exclusive responsibility for hearing and determining all disputes arising under the Pay Equity Act. The Tribunal's processes and decisions are completely independent of the Pay Equity Office which is the Commission's investigative and educational branch.

This Information Bulletin describes how an employee, employer, or bargaining agent makes an Application for a hearing before the Pay Equity Hearings Tribunal.

MAKING AN APPLICATION

Read this Information Bulletin together with the Tribunal's Rules of Practice. Decisions of the Tribunal are reported in the Pay Equity Reports and available on the Tribunal's website.

If you are an employee or group of employees who wish to remain anonymous in the proceeding before the Tribunal please refer to Information Bulletin # 3 "So You Want to Remain Anonymous" before completing your Application.

ANSWER THESE QUESTIONS FIRST

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Have You Been to Review Services?

Resolving pay equity disputes has two steps: investigative and adjudicative. As the first step, a Review Officer investigates your complaint and, where possible, assists you to settle it. The Review Services process is very important to the Pay Equity Act. Consequently, you must complete that step before the Tribunal will adjudicate your dispute.

First ask whether your Application fits into one of the following categories. You may apply to the Tribunal for a hearing:

• to confirm, vary or revoke an order of a Review Officer;
• if you have received a ss.23(2) notice that the Review Officer cannot effect a settlement and will not be making an order;
• if a Review Officer has refused to deal with your complaint for the reasons contained in ss.23(3) of the Act;
• where there is a complaint that a party has breached a settlement made in accordance with the provisions of s.25.1 of the Act;
• for the Tribunal's consent to prosecute in accordance with s. 26 of the Act; or,
• if the Review Services process is exhausted and no Order has issued.

Then ask yourself whether all the issues in your Application were considered by the Review Officer (either because they were the issues the parties took to Review Services or because the Review Officer raised them in the course of the investigation) and whether there has been a reasonable opportunity for settlement. You can proceed if your Application meets these tests.

Some Tribunal decisions which explain this in more detail: Haldimand-Norfolk (No.1) (1990), 1 P.E.R. 1; Scarborough (No.1) (1994), 5 P.E.R. 45; Ottawa-Carelton Board of Education (1995), 6 P.E.R. 212; Kensington Village (2000-01), 11 P.E.R. 1; Ongwanada (2001-02), 12 P.E.R. 1.

Do You Have a Prima Facie Case?

After looking at your Application and accepting everything in it as true, the Tribunal must be satisfied that a violation of the Pay Equity Act has occurred and that the Tribunal is able to provide the remedy you request. If your Application cannot meet this test it will be dismissed, without hearing any evidence, on the basis that it does not state a prima facie case (a case on the "face" of the Application).

Some Tribunal decisions which explain this in more detail: Peterborough (1991), 2 P.E.R. 86; Liquor Control Board of Ontario (1991), 2 P.E.R. 193; Villa Columbo (1997), 8 P.E.R. 133; Royal Crest Lifecare Group (2000-01), 11 P.E.R. 36; Regesh Family and Child Services (2001-02), 12 P.E.R. 94.

COMPLETING THE APPLICATION

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What Goes in the Application?

Fill out the Tribunal's Application form (Form 1) completely. Identify all the parties (the people or organizations named in the Order or ss.22(3) Notice) to the Application and provide contact information for them and their representatives. They are the "Respondents" to the Application.

Part C of the Application is where you tell the Tribunal about your dispute. You can write on the form or attach additional pages to the Application. Make sure you include all the following information in consecutively numbered paragraphs:

1. a general statement of the issue or matters in dispute;
2. identify the provisions of the Pay Equity Act which you say support your position or which you believe have been violated; and,
3. a clear and concise statement of the important facts and events. Tell us what did or did not happen, when and where it happened or should have happened, and who was involved.

Complaints about the conduct of the Review Officer or the process at Review Services are rarely relevant to the workplace pay equity dispute and should not be included in your Application.

Except with the Tribunal's permission, you may not rely on any issue, fact, or event not contained in your Application.

Part D of the Application is where you tell the Tribunal what you want (the remedy). For example, do you want to revoke, vary or confirm the Review Officer's Order? How do you want the Tribunal to do this? Which sections of the Pay Equity Act do you rely on for this result? Include all monetary and other redress you seek. You can write on the form or attach additional pages to your Application.

If the Review Officer issued an Order it must be attached to your Application.

Finally, indicate whether you require French language or accommodation services, and identify the regional centre (London, Ottawa, North Bay, Sault Ste. Marie, Sudbury, Thunder Bay, Timmins, Toronto, Windsor) in which you wish the hearing to be held.

Some Tribunal decisions which explain this in more detail: Renfrew County and District Health Unit (No.2) (2001-02), 12 P.E.R. 98; Royal Crest Lifecare Group (2000-01), 11 P.E.R. 36; Riverdale Hospital (G.O.E. (No.2) (1997), 8 P.E.R. 149; Liquor Control Board of Ontario (No.2) (1995), 6 P.E.R. 148; City of Brampton (No.3) (1995), 6 P.E.R. 108; Belmont and Methuen (1994), 5 P.E.R. 5; Haldimand-Norfolk (No.2) (1990), 1 P.E.R. 13; Women's College Hospital (No.1) (1990), 1 P.E.R. 53.

What is Service and Filing?

The completed Application, a blank Response (Form 2), a copy of these Rules and a copy of Information Bulletin #2 "Responding to an Application" must be served on all the persons you have named as Respondents. This provides the Respondents with all the information necessary to prepare a Response. You may serve the Complete Application Package by hand, regular mail, facsimile transmission, or courier.

Where a Respondent or Respondents have elected to remain anonymous you must also serve a copy of Information Bulletin #3 "So You Want to Remain Anonymous" on the Agent for the anonymous employee(s). If the Respondent anonymous employee(s) failed to name an Agent at Review Services you will not be able to serve the Complete Application Package on them. In those circumstances the Registrar asks the Pay Equity Office to forward the Complete Application Package to those Respondent(s) on your behalf.

The Application and a Statement of Service (Form 3) must be filed with the Tribunal no later than 5 days after the effective date of service on the Respondents. "Effective date of service" is defined in the Rules. The Application and Statement of Service may be filed by hand, regular mail, facsimile transmission, or courier. Four copies of the Application must be provided if you file by hand, mail, or courier. If you file by facsimile you are not required to provide additional copies.

Failure to complete, serve, and file the Application in accordance with the Rules will delay its processing and, ultimately, the scheduling of the hearing.

What Happens Next?

Once the Application is filed, the Tribunal's Registrar sends a letter to all parties confirming receipt of the Application and assigning it a File Number. The File Number must be used on all future pleadings, filings, and correspondence. Anything sent to or filed with the Tribunal must be copied to all the other parties in the Application.

All correspondence and telephone contact with the Tribunal must be carried out through the Registrar or her office.

The Respondent(s) serve a Response on you which sets out their view of the Application. Review the Response carefully. Does it raise any facts or issues which are not addressed in your Application? If so, you may chose to file a Reply giving your position on those new facts or issues. The Reply must be in writing but you are not required to use a specific form. It must be served and filed within five days of the effective date of service of the Response.

Once any Replies are served and filed, or the time for filing passes, the pleadings period is considered closed. At this point the Registrar sets a date for the Pre-Hearing Conference. If the Tribunal concludes that a Pre-Hearing is not useful in the circumstances, a hearing date is set. The Registrar may set these dates without consulting you.

NEXT STEPS: PREPARING FOR THE HEARING

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What is a Pre-Hearing Conference?

The Pre-Hearing Conference is a meeting of all the parties with the Chair or a Vice-Chair of the Tribunal. At the Pre-Hearing the Chair or Vice-Chair assists the parties to get the Application "hearing ready". This may include:

• helping parties to estimate hearing time;
• getting parties to work out a timetable for exchanging lists of witnesses;
• helping parties to resolve production or disclosure questions;
• identifying preliminary motions or objections; and,
• agreeing on procedural matters.

In addition, the Rules now require parties to disclose all arguably relevant documents before the Pre-Hearing. Given this, the parties are expected to have a good appreciation of the relevant documentary evidence when they attend the Pre-Hearing and may consider drafting an Agreed Statement of Fact. This document sets out all the facts the parties can agree upon and any uncontroversial facts. An Agreed Statement of Fact reduces, and sometime eliminates, the need for witnesses at the hearing. As a result, the hearing can be shorter and less costly.

Finally, where the parties agree, the Chair or Vice-Chair may assist the parties to settle some or all the issues in dispute.

The Pre-Hearing Conference is most effective if everyone is prepared. Your representative or spokesperson must know your case and have the authority to enter into binding agreements. Agreements reached at the Pre-Hearing are recorded in a Pre-Hearing Conference Memo. The Pre-Hearing Conference Memo is given to the panel of the Tribunal hearing the Application. The Tribunal will rarely allow parties to renege on their Pre-Hearing Agreements. See Management Board (Review Officers) (No.2) (1999-2000), 10 P.E.R. 4.

Unless it is included in the Pre-Hearing Conference Memo or an Agreed Statement of Fact, anything said at the Pre-Hearing Conference is "off the record" and cannot be referred to in the hearing.

Where all parties consent, the Tribunal may also conduct mediation sessions. Their purpose is to resolve the dispute. Parties can request an opportunity to mediate at any point in the Tribunal's process - even after the hearing on the merits has begun.

For additional information please see Information Bulletin # 4 "The Pre-Hearing Conference".

What is Disclosure and Production?

Materials provided to a Review Officer are not necessarily shared with the other party and the Review Officer's file is never provided to the Tribunal. In the past parties often had no opportunity to exchange or review each other's documents before the hearing starts. You need time to do this, especially where documents are complex, lengthy, or voluminous. Having this information prior to the Pre-Hearing Conference avoids the need for adjournments, assists parties to know each other's case better, identify areas of agreement, and make fully informed choices about settlement.

Consequently, the Tribunal's Rules now require parties to make a list of all documents, or other things, which are in their possession and which are arguably relevant to the issues in dispute. This list must be served on the other parties 30 days before the Pre-Hearing Conference or the start of the hearing, whichever is earlier. A party may make a written request for a copy of a document or thing from the list. Unless privilege is claimed over the document, a copy must be provided within 10 days.

Ten days before the hearing on the merits begins the parties must exchange lists of all the documents they intend to rely on before the Tribunal. Having this information prior to the hearing focuses your hearing preparation and will enable you to conduct the hearing quickly and efficiently.

If you want to rely on an expert witness or expert's report at the hearing please review the Tribunal's Rules concerning this special kind of evidence.

Some Tribunal decisions which explain this in more detail: Kirkland Lake (2000-01), 11 P.E.R. 47; Management Board (Review Officers) (1999-2000), 9 P.E.R. 20; Port Hope Hydro (1999-2000), 9 P.E.R. 81; Salvation Army (Group of Employers) (No.2) (1996), 7 P.E.R. 2; Windsor (Huron Lodge) (1995), 6 P.E.R. 223; Kingston and Frontenac Children's Aid Society (1991), 2 P.E.R. 31.

What Happens Next?

The Tribunal sends you a Notice of Hearing giving the date, time and location of the hearing. The Tribunal may also direct that Notice of Hearing to be given to other persons or organizations whose rights or interests might be affected by the outcome of the hearing.

The hearing is a legal proceeding. The decision of the Tribunal determines your rights and obligations under the Act. You must attend the hearing when it is scheduled. If you fail to attend, the hearing may proceed without you.

You are entitled, but not required, to be represented by a lawyer or other representative at the hearing. The Tribunal will not provide a lawyer or representative for you.

Some Tribunal decisions which explain these points in more detail: Grey Bruce Regional Health Centre (1990), 1 P.E.R. 86; Hospital for Sick Children (1991), 2 P.E.R. 174; BICC Phillips (1997), 8 P.E.R. 142; Law Society (No.2) (1998-99), 9 P.E.R. 35; Humber/Confederation CAAT (1998-99), 9 P.E.R. 45 Ontario Northland Transportation Commission (No.1) (2001-02), 12 P.E.R. 134.

Can You Adjourn the Hearing?

Sometimes it is impossible to attend the hearing on the date it is scheduled. In that case, you may ask the Tribunal to adjourn the hearing to a different date.

Except in extremely urgent situations, you must ask the other parties for their consent to the adjournment before you contact the Tribunal. Then write to the Registrar setting out the reasons for your request and the parties' positions. Your letter must be copied to the other parties. Any party objecting to the adjournment must provide reasons, in writing, to the Tribunal as soon as possible. The Tribunal will issue a decision refusing, allowing, or putting conditions on the adjournment.

In urgent situations ( for example serious illness, a death in the family, or extreme weather conditions which prevent travel) you should telephone the Registrar as soon as possible. Some Tribunal decisions which explain this in more detail: Nepean Public Library Board (No.2) (1991), 2 P.E.R. 18, Penetanguishene General Hospital (1991), 2 P.E.R. 25; Respondent Hospitals (1992), 3 P.E.R. 185; Wellington (No.2) (1997), 8 P.E.R. 131.

How Do You Get Witnesses to Come to the Hearing?

You are responsible for the attendance of your witnesses. If you want a witness to testify before the Tribunal you must arrange to have the witness present. If a witness fails to attend, the hearing may proceed without that evidence.

If you are not sure the witness will show up, serve him or her with a summons (Form 4). The summons is a Tribunal document ordering the witness to attend the hearing and to bring whatever documents you describe in the summons to the hearing.

Contact the Registrar to request summons forms. Make sure you allow sufficient time before the hearing to obtain and serve the summons.

Form 4 and the Tribunal's Rules explain the requirements for service of the summons. It must be served on the witness in person with the required payment for travel and attendance. The person who serves the summons must complete an Affidavit of Personal Service (Form 5). The Affidavit may be required at the hearing.

Note that the Tribunal must give its consent to summons a Review Officer. Consent is only given when there are exceptional circumstances.

Some Tribunal decisions which explain this in more detail: New Liskeard Board of Police Commissioners (No.1) (1991), 2 P.E.R. 39; Kingston and Frontenac Children's Aid Society (1991), 2 P.E.R. 31; Brampton Public Library (1993), 4 P.E.R. 81; Plantagenet (No.1) (1997), 8 P.E.R. 32; Management Board (Review Officers) (1998-99), 9 P.E.R. 20.

WHAT TO EXPECT AT THE HEARING

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Who Hears the Application?

The hearing takes place before a three person panel of the Tribunal. The panel members are the Chair or Vice-Chair (who sits in the middle), and two "sides members": a Member representative of employers and a Member representative of employees. The sides members ensure that the Tribunal considers the perspectives of both employers and employees but are not advocates for the specific parties appearing before them.

People are appointed to the Tribunal because they have special expertise and understanding of pay equity, labour and employment relations, human rights and compensation systems. Some, but not all, are lawyers.

What Do You Do at the Hearing?

At the hearing, you may be asked to make a brief opening statement explaining what you want the Tribunal to do and why. The Respondent will also be given a chance to explain its position.

Unless everyone agrees about the facts, you will need to present evidence. This involves witnesses giving testimony and the introduction of documents. Usually, but not always, the Applicant gives its evidence first. If the Application alleges a breach of ss.9(2) (the reprisal protections) the Respondent will be required to proceed first.

The Tribunal holds a hearing "de novo". This means testimony is given under oath or on affirmation, tested by cross-examination, and weighed by the Tribunal. The hearing is not an appeal of the Review Officer's Order and the Review Officer's findings or conclusions are not binding on the Tribunal. For that reason, arguments about the Review Officer's conduct or the process at Review Services are rarely relevant to the decision the Tribunal is required to make.

Administrative tribunals such as the Pay Equity Hearings Tribunal are not obliged to apply the rules of evidence as strictly as a court. But all evidence must be relevant to the issues in dispute before the Tribunal.

Once your witnesses give their evidence they may be cross-examined by the Respondent. You will have the opportunity to cross-examine the Respondent's witnesses. Panel members may also ask a witness questions.

When the evidence is complete all parties make final submissions. This is your chance to give your view of all the evidence, discuss any decisions of the Tribunal, other tribunals, or the courts which you believe are helpful to your position, and explain why the Tribunal can, and should, provide you with the result you are seeking. The panel may take this opportunity to ask you questions.

The Tribunal may also hold all or part of a hearing "in writing". That means you make your arguments in writing, the Respondents file a written answer to your arguments, and you file an answer to the Respondents. Written hearings are most often held were the issues in dispute are legal rather than evidentiary.

Some Tribunal decisions which explain this in more detail: Cybermedix Health Services Ltd. (1990),1 P.E.R. 41; Great Lakes Brick and Stone Ltd (1994), 5 P.E.R. 1; Belmont and Methuen (1994), 5 P.E.R. 5; BICC Phillips (1997), 8 P.E.R. 142; Management Board Secretariat (No.6) (1998-99), 9 P.E.R. 48; Royal Crest Lifecare Group (2000-01), 11 P.E.R. 36; Kitchener-Waterloo Lutheran School (2001-02) 12 P.E.R. 112.

THE TRIBUNAL'S DECISION

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The Tribunal will decide the Application based only on information, evidence, and arguments presented at the hearing. You cannot make additional arguments or provide additional evidence after the hearing ends unless the Tribunal specifically permits you to do so. You may not communicate privately with the Tribunal about the case before, during, or after the hearing.

The Tribunal's decision is final and binding on the parties. There is no appeal from the decision except by a process called judicial review. Applications for judicial review are filed in the Superior Court of Justice, Divisional Court.

In exceptional circumstances you may ask the Tribunal to reconsider its decision. Please see Information Bulletin #7 "Requests for Reconsideration" for more information.

The Tribunal is not responsible for enforcing its decision. You may ask the Registrar for a certified copy of the decision which can be filed in the Superior Court of Justice and, once filed, is enforceable as an order of that Court.