) ) PHUNG KIM QUACH Applicant – v. –, 2013 ONSC 4435

CITATION : Quach v. St. Christopher House and CUPE Local 3393, 2013 ONSC 4435 DIVISIONAL COURT FILE NO.: 5/13 DATE: 20130626 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, SACHS AND GRACE JJ. BETWEEN: ) ) PHUNG KIM QUACH Applicant – and – THE ST. CHRISTOPHER HOUSE, CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3393 and THE PAY EQUITY HEARINGS TRIBUNAL Respondents )) )) )) )) )))))) Carlin McGoogan , for the Applicant Frank Cesario , for the Respondent, St. Christopher House Gavin Leeb , for the Respondent, CUPE, Local 3393 Voy T.

Stelmaszynski, for the Respondent, Pay Equity Hearings Tribunal ) ) ) HEARD at Toronto: June 26, 2013 SWINTON J. (orally) [ 1 ] The applicant, a former employee of St. Christopher House (“SCH”) seeks judicial review of a decision of the Pay Equity Hearings Tribunal (“the Tribunal”) dated November 15, 2012, that dismissed her application under the Pay Equity Act , R.S.O. 1990, c.

P.7 (“the Act”) because she had not established a prima facie case and her application had no reasonable prospect of success on the merits or in terms of any meaningful remedy. [ 2 ] At the outset of the hearing of the applicant’s application and after her opening submissions, SCH asked the Tribunal to dismiss the application on the basis that it did not make out a prima facie case. The Tribunal refused the applicant’s request for an adjournment so she could retain counsel, but gave her the rest of the day to prepare her submissions.

The next day the Tribunal considered the allegations in her application, which I note are very difficult to understand. The Tribunal also allowed the applicant to expand on her allegations in further oral submissions. Essentially, it appears that she made the following complaints about the pay equity plan between SCH and the Canadian Union of Public Employees, Local 3393 (“the Union”): (

i) she had not been invited to participate in the pay equity process; (ii) she disagreed with the male comparator in the Grade IV Band because the position was not listed in the 2005-2007 collective agreement between SCH and the Union and she was not aware of such a position while she was employed at SCH; and (iii) she disputed the valuation of the Finance Assistant position in the pay equity plan, particularly because she alleged the responsibilities of that position had changed. [ 3 ] The Tribunal started its analysis by stating that when an employer and a trade union negotiate a pay equity plan and then implement it, the plan is deemed to be approved (see s. 14(5) of the Act ).

The Tribunal relied on its jurisprudence that requires an employee challenging such a plan to plead “material facts in the application that would, if proved, satisfy the Tribunal that the union and the employer acted unreasonably.” The Tribunal found that the application, as pleaded, had “no reasonable prospect of success on the

merits or in terms of any meaningful remedy.” [ 4 ] All of the parties to this application for judicial review agree that the standard of review of reasonableness applies to the review of the Tribunal’s decision on the merits. [ 5 ] The applicant argues that the decision should be set aside for two reasons: first, the Tribunal made findings of fact in the absence of any evidence; and second, she was denied procedural fairness, as she did not have proper notice that SCH would seek to have her application dismissed as a preliminary matter and she was denied an adjournment to retain counsel. [ 6 ] On her first point, the Tribunal did not make findings of fact in the absence of evidence.

Rather, accepting the facts on which she relied as true, the Tribunal concluded that her application had no reasonable prospect of success. That was a reasonable conclusion. [ 7 ] First, the applicant, an ex-employee, was not entitled to participate in the negotiation of the pay equity plan. It was the role of the employer, SCH, and the Union to negotiate such a plan. [ 8 ] Second, the only material fact the applicant raised was that the job used as the male comparator did not exist in the 2005- 2007 collective agreement and she was not aware of the position while she was employed at SCH.

The Tribunal accepted both of these facts for purposes of its analysis on the motion before it (see para. 15 of the Tribunal’s Reasons). However, the Tribunal found that the applicant had alleged no other facts that would suggest that the male comparator used “was not a bargaining unit male job class.” The position is listed at p. 3 of the pay equity plan, which is deemed to have been approved pursuant to the Act .

It was the applicant’s obligation to plead material facts calling into question the reasonableness of the male comparator used, not the respondents’ obligation to lead evidence to justify the male comparator. She failed to meet that obligation. [ 9 ] Third, even if the applicant were correct as to the proper valuation of her former position, as the Tribunal accepted, she would not have been entitled to a pay equity adjustment.

Therefore, there was no reasonable prospect of any meaningful remedy if the application proceeded. [ 10 ] Finally, the Tribunal did not act improperly in considering the pay equity plan and the job evaluation information, as they gave a necessary context in which to understand and then evaluate the applicant’s allegations in order for the Tribunal to determine whether the application had a reasonable prospect of success. [ 11 ] As to the issue of procedural fairness, I am satisfied that the applicant had ample notice that her application might be dismissed at an early stage if she could not make out a prima facie case.

The Union specifically raised this issue in its response, stating that the application “does not set out a prima facie case against the Union and is without merit.” As well, the Tribunal’s Information Bulletin No. I explained that the issue of a prima facie case could be raised at a hearing and described what that meant in plain language. It also emphasized that the Tribunal itself “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).” Indeed, the Tribunal itself could have raised this issue of a prima facie case on its own motion (see Parry Sound District General Hospital v. Ontario Public Service Employees Union, Local 320 , (No. 2); 0496-94 P.E.H.T.). Finally, no formal notice of motion was required under the Tribunal’s procedure. [ 12 ] That brings me to the issue of the adjournment to retain counsel.

The Tribunal had the discretion whether to grant an adjournment. The applicant had chosen to be unrepresented through the proceedings, and she had ample time to retain counsel to represent her but she chose not to do so. She was aware of the Tribunal’s rules on adjournment. It was reasonable for the Tribunal to find that if she was comfortable in proceeding with the hearing without counsel, she should have been comfortable with demonstrating why her application had merit if the Tribunal accepted all her allegations as true.

Therefore, the refusal of the adjournment was reasonable and did not result in a denial of procedural fairness. [ 13 ] For these reasons, the application for judicial review is dismissed. COSTS [ 14 ] I have endorsed the Application Record, “This application is dismissed for oral reasons delivered in court today. The Union and the Tribunal do not seek costs. Costs to the St. Christopher House fixed at $6,000.00 all inclusive.” SWINTON J. SACHS J. GRACE J. Date of Reasons for Judgment: June 26, 2013 Date of Release: July 3, 2013

CITATION : Quach v. St. Christopher House and CUPE Local 3393, 2013 ONSC 4435 DIVISIONAL COURT FILE NO.: 5/13 DATE: 20130626 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, SACHS AND GRACE JJ. BETWEEN: PHUNG KIM QUACH Applicant – and – THE ST. CHRISTOPHER HOUSE, CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3393 and THE PAY EQUITY HEARINGS TRIBUNAL Respondents ORAL REASONS FOR JUDGMENT SWINTON J. Date of Reasons for Judgment: June 26, 2013 Date of Release: July 3, 2013