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HomeMy WebLinkAboutP-2002-0003.Chyczji.08-09-08 Decision Public Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Oues t 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 Tél. : (416) 326-1388 Tel. (416) 326-1388 Téléc. : (416) 326-1396 Fax (416) 326-1396 P-2002-0003 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Ron Chyczij Grievor - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Kathleen O?NeilVice-Chair FOR THE GRIEVORRon Chyczij Alexandra Chyczij FOR THE EMPLOYERRyan Conacher Counsel Ministry of Government Services HEARING July 11 and 14, 2008. 2 INTERIM DECISION This decision deals with the employer?s motion for the dismissal of a portion of Mr. Chyczij?s grievance, which contests the denial of a request for tuition assistance, on the basis of issue estoppel and foreclosure by the terms of previous settlements of grievances. The grievor resists the motion on its merits, and because he says it is untimely. The employer?s argument on issue estoppel is based on a decision of a Review Officer at the Pay Equity Commission concerning a reprisal complaint filed by the grievor with that body. It is the employer?s position that the decision dated April 22, 2003 determines a number of issues in this matter so that this Board should not make fresh determinations on them. In the alternative, the employer argues that it would be more appropriate to refer the matter back to the Pay equity Hearings Tribunal for final determination and that the settlements of two prior grievances preclude further litigation of the issues settled. For ease of reference the portions of the Pay Equity Act referred to in evidence and argument are appended to this decision. Factual Background The grievor acted as spokesperson for an anonymous group of Review Officers who challenged the government?s pay equity plan in 1995, which was before the Pay Equity Hearings Tribunal for six years. A settlement was obtained in November 2001 after mediation with Mr. Gerry Lee, a former Review Officer, who was engaged on a contractual basis for the purpose, as it involved internal complaints. In December 2001, not long after the settlement of the group pay equity complaint, this grievance was filed with the employer and was referred to this Board on January 7, 2003. Hearing dates set for January, June and November, 2003 were adjourned on consent. The first date on which a hearing proceeded was January 25, 2005. To date, twenty-one days of hearing have been held and several interim decisions have been issued along the way as to jurisdiction, 3 disclosure, particulars and procedural issues. Three successive counsel have handled the matter for the employer. The first time in this hearing that either party mentioned the grievor?s personal reprisal complaint before the Pay Equity Commission or the Notice of Decision dated April 22, 2003 was on May 2, 2008, five years after its issuance, when it was put to the grievor in cross- examination. At that time, current counsel indicated he had just become aware of the document and wished to bring a motion concerning its effect. The Board invited submissions from the grievor on when the motion should be heard. At the outset of the next hearing date, May 13, 2008, and prior to closing his case later that day, Mr. Chyczij agreed that rather than waiting until the conclusion of the case, the motion should be heard. The motion was then set down for a separate date, and heard on July 11 and 14, 2008, during which the parties presented evidence and argument on the motion. In June 2002, about six months after filing this grievance, Mr. Chyczij had filed the personal complaint under s. 9(2) of the Pay Equity Act, that lead to the 2003 Review Officer decision. In that complaint he claimed that he had been treated unfairly at work because of his previous involvement with proceedings under that Act. Since the matter involved an internal complainant, Bev Rosser, Manager of the Pay Equity Office, once again engaged Mr. Lee on a contractual basis to act as Review Officer to do the investigation normally done by the employee Review Officers. Mr. Chyczij raised an objection to the appointment of Mr. Lee for this purpose, as he was, and remains, of the view that Mr. Lee was in a position of conflict of interest in regards to investigating his complaint, on the basis that the Pay Equity Office was one of the parties, and had hired and paid him. Mr. Chyczij asserts that Mr. Lee would have been biased in favour of the employer because of his hope for future contracts or references from them. Further, he was concerned that, although Mr. Lee had not worked for the Commission for about ten years when he wrote the decision, he knew all the people involved on both sides from his employment and previous dealings with them. He was of the view that all the circumstances, including that the employer would not negotiate the terms of the appointment of the Review Officer with him, meant that there was not a sufficient arms? length relationship between Mr. Lee and the parties. In his thirteen page ?Notice of Decision? dated April 22, 2003, Mr. Lee deals with and rejects the allegation of bias and conflict of interest made by the grievor against him, as well as the reprisal 4 allegations which were the substance of the complaint, and sets out the facts and reasons underpinning his decision. Two of the three examples of differential treatment alleged to comprise a violation of the Pay Equity Act in that the complaint had already been grieved and settled by the time of Mr. Lee?s decision. These were an allegation that the grievor had not been promoted to Manager, Pay Equity in July/August 2000, and that he was not permitted to carry-over unused vacation credits from 2001 to 2002. The employer took the position that Mr. Chyczij?s inclusion of those matters in the reprisal complaint was foreclosed by the settlements, as it does in these proceedings. Relying on jurisprudence from the Pay Equity Hearings Tribunal concerning situations where proceedings under the Pay Equity Act were not mentioned in a release clause, and the fact that the grievor was alleging a pattern of behaviour, Mr. Lee decided to consider those matters on their merits independent of the settlement. Prior to issuing his notice of decision, Mr. Lee made Ms. Rosser aware of the allegation of conflict of interest. When asked by the grievor in cross-examination what her response had been, she said that the focus in their discussions was that Mr. Lee would have to make a decision on the issue. She acknowledged that she reviews the decisions of Review Officers before they are released, but said that she only gives process guidance, and that, like any other Review Officer, she would not tell them how to conduct the investigation. As to the decisions, her regular role was to ensure they were legally correct, and could be easily understood by the parties. In the case of the decision Mr. Lee issued in Mr. Chyczij?s case, she knew she had made no corrections, and had no memory of seeing it before it was issued. Normally, the Pay Equity Office staff physically prepares the decisions, but not on that occasion. Further, Mr. Lee made no mention of what the likely outcome was before he wrote up his decision. Ms. Rosser could not recall what, if any disclosure Mr. Lee had asked for, but said she would have provided disclosure if requested. She was not sure whether Mr. Lee had investigated whether Mr. Chyczij was the only one to have his vacation cancelled, and Mr. Lee does not mention the point in his decision. She would have explained her decision, and did not recall exactly what she said to Mr. Lee. 5 Ms. Rosser said that although the Statutory Powers and Procedures Act does not apply by statute, the Review Officer process is run, as a matter of policy, as if it were. Further, although she said there is no reverse onus applying to Review Officers explicitly in section 9(2) of the act, they operate on that basis. Mr. Chyczij is of the view that the reverse onus does not apply until a complaint is before the Hearings Tribunal. Subsection 34(4) of the The Pay Equity Act provides that a Review Officer need not hold a hearing prior to making an order, and Mr. Lee did not conduct a hearing before issuing his Notice of Decision, nor take evidence under oath. Rather, he separately interviewed people, including Ms. Rosser and Mr. Chyczij. With those facts in mind, we turn to the employer?s motion, starting with the grievor?s submission that it should be dismissed on the basis that it has been brought too late in this process. I. is the Motion Untimely? The grievor maintains that the employer?s motion is untimely, as it should have been brought at the outset of the case along with the other preliminary motions brought by previous counsel, rather than after he had closed his case. The grievor points out that the allegations of differential treatment concerning the vacation carry over and job competition issues were part of the particulars he filed in 2005, and that he has already given his evidence, including facts related to these issues and the settlement of the grievances. It is the grievor?s position that it is now too late in the case for the employer to be trying to narrow the issues. Further, the grievor asserted that he had tried to object to the admission of the decision of the Review Officer, but that the ruling had been that he had not objected to it in a timely manner. Thus, the grievor argues it would not be fair to allow the employer?s motion at this stage of the proceedings. Further, the grievor characterizes the motion as an attempt to apply a rule on a retroactive basis, which would amount to a denial of natural justice. He states that if he had known of the objection earlier, that he might have introduced other evidence or sought to amend his particulars. 6 The employer responds that it is trying to reduce the length of an already protracted hearing, and refers to the Grievance Settlement Board?s decision OPSEU (Latimer) and the Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) #0131/95,0132/95, 2132/95, dated June 22, 1999 where the Board referred to the timing of a motion concerning the scope of the evidence to be ?fortunate? where it was brought prior to the commencement of the employer?s case. Having considered all the submissions and evidence on this motion, and although it would have been preferable if this motion had been brought earlier, and the situation thus been clarified earlier, I find it appropriate to entertain the motion on its merits. The grievor had notice of this motion prior to closing his case in chief, and did not seek leave to introduce further evidence. Nor did he give any indication of what other evidence could have been brought or amendment to his particulars that could have been required in response to the narrowing of issues sought by the motion. If it had been an expansion of the issues which was sought, it might have been another matter. Nonetheless, he will still have the right to bring reply evidence in response to any element of the employer?s case that he could not have anticipated in his case in chief. In the circumstances, it is the Board?s view that the grievor will not be prejudiced by the hearing of this motion. As to the grievor?s remarks about the admission of the decision of the Review Officer into evidence, there was no ruling on that matter as the grievor did not press an objection to its admission. In any event, as a published decision, it could be referred to in argument without being proven in evidence. Further, even if there had been a ruling, it would not have constituted a precedent on the question of whether the Board, which has the right to control its own procedure, should hear a motion on the points of law the employer wishes to argue. What evidence is admitted, and what use is made of it when the law is applied to it, are two different matters. Further, it is not a denial of natural justice or a retroactive application of a rule for the Board to rule on a motion, of which there was ample notice, after hearing the parties? evidence and argument. 7 Moreover, the motion involves principles of issue estoppel and the importance of settlements that are very important to the Board?s process, and all litigants who come before it, including the grievor. Given the length of this hearing to date, and the purpose of the motion, which is to keep the employer?s case to issues which are necessary to respond to, there is no sufficient reason not to entertain the motion. It is not too late for the employer to seek direction as to the scope of the issues to which it must respond, or too early for the Board to rule on the legal points involved. II. Issue Estoppel Issue estoppel is a longstanding feature of the law, which is meant to prevent a party from having to repeatedly engage in litigation of the same issues in different proceedings. Both parties cited the decision of the Ontario Court of Appeal in Rasanen vs. Rosemount Instruments Ltd. [1994] 17 O.R. (3d) 267, (application for leave to appeal to the Supreme Court of Canada dismissed September 1, 1994), as the source of the applicable test for deciding whether a prior decision in a different forum should prevent an issue being dealt with in a subsequent proceeding. The three questions that need to be answered in the affirmative for the doctrine to apply are: 1. Has the same question been previously decided? 2. Was the previous judicial decision on the issue final? 3. Were the parties in the two decisions the same? This Board has adopted those tests in G. Morrison and the Crown in Right of Ontario (Human Rights Commission)) #P/0037/95, and the arguments of the parties will be discussed in answer to them below. 1.Did the Review Officer Decision Answer the Same Question? The employer argues that three allegations made by the grievor in this grievance proceeding were already decided by the Review Officer in 2003 in the context of his complaint under s. 9(2) of the Pay Equity Act.. These are first, whether the employer?s failure to pay the tuition assistance sought was a reprisal for the grievor?s activities related to enforcing the Pay Equity Act in relation to the Review Officers themselves, and further, whether the employer?s treatment of the grievor in regards to his vacation credits and in a job competition show a pattern of bias against him. The employer relies on the fact that all three of these were addressed in the Review 8 Officer?s Notice of Decision, and were found to be unsubstantiated. Further, the three elements alleged were found not to constitute a pattern of differential treatment toward the applicant because of his involvement in a protected activity. However, both parties acknowledge that there are additional issues raised in the grievance that were not covered in the Review Officer decision. For instance, the grievance involves the additional allegation that the failure to pay tuition was not in compliance with policy. Thus, the employer is not seeking the dismissal of the grievance in its entirety. I am satisfied that the incidents complained of in several of the allegations set out in the grievor?s particulars related to this grievance are the same as ones dealt with in the proceeding before the Review Officer. The grievor did not really suggest otherwise as a factual matter. Rather, he argued that the statutory framework of a complaint under s. 9(2) of the Pay Equity Act and differences in jurisdiction or practice as to remedy between the Pay Equity Commission and the Pay Equity Hearings Tribunal as compared to a grievance before the Public Service Grievance Board should lead to a finding that the same question was not being addressed. In the alternative, he argued that even if it were decided that the same question was at issue, he had the right to determine which venue to pursue. Further, this grievance was filed prior to the complaint under the Pay Equity Act. Moreover, the grievor is of the view that it is necessary to consider the whole sequence of events to understand the present grievance. TheRasanen decision makes clear that the precise formulation of the question, or the fact that the question arises under a different statute or process is not determinative of the issue of whether the same question was being determined. In the case before me, the question as to whether the employer?s actions in regards to tuition assistance, a job competition and treatment of vacation credits was improperly motivated in response to the grievor?s protected activity under the Pay Equity Act are questions also raised in the particulars filed before this Board. Further, they were a necessary and fundamental part of the Review Officer?s decision, rather than a side issue which did not need to be decided. Therefore, I find that the first criterion in Rasanen has been satisfied. 2. Was the Review Officer?s decision a final judicial decision? 9 This criterion requires two elements, that the prior decision be final and judicial. i)Was the decision final? InRasanen, the majority of the Court had no hesitation in finding that the Referee under The Employment Standards Act whose decisions was being considered had rendered a final decision because that statute provided that the referee?s decisions were final and binding. Similarly, answering the question of whether the Review Officer?s decision is final starts with the statute which gives such officers their powers, and describes their role in the statutory scheme of the Pay Equity Act. The statute provides that two principal types of matters are to be dealt with by Review Officers. The first deals with the establishment or amendment of a pay equity plan, and is dealt with in s. 16(1) of the Act. It provides that a review officer will investigate a notice of objection and endeavor to effect a settlement. Failing settlement, the officer is directed to decide all outstanding matters by order. This is not the role the Review Officer was playing in dealing with the grievor?s complaint. Nonetheless, the Review Officer?s mandate to decide all outstanding matters by order for this type of matter is usefully contrasted with the provisions relating to complaints, which is what the Review Officer was dealing with in the grievor?s case, which does not contain such a direction. Sections 23 and 24 provide that, when investigating complaints, the officer shall investigate and endeavour to effect a settlement. As a result of the investigation, the Officer has the option to decide that the complaint should not be considered if it falls outside the jurisdiction of the Commission or is trivial, frivolous, vexatious, or made in bad faith. Further, if a contravention of the Act is found, the Review Officer is entitled to make an order to effect compliance, as set out in sections 24 (3). However, where no contravention has been found, as in the grievor?s case, the statute simply provides that the parties are to be notified that a settlement cannot be effected and that he or she will not be making an order under subsection 24 (3). In the decision on the grievor?s complaint, the Review Officer took the route set out in section 23(2) in that he did not make an order under s. 24 (3), and had not effected a settlement of the matter. He expressed this in the final paragraph of his ?Notice of Decision? as follows: 10 Pursuant to subsection 23(2) of the Act, I am notifying the parties and the Pay Equity Hearings Tribunal that I have found no contravention of the Act and that I will not be making an Order under subsection 24(3) of the Act. Earlier in the decision the Review Officer made clear that if the complainant was unhappy with any aspect of his decision, he could have a hearing de novo at the Pay Equity Hearings Tribunal. In fact, s. 25 (1) (a) of the Pay Equity Act provides that the Hearings Tribunal shall hold a hearing in the circumstances where the Review Officer is unable to effect a settlement of a complaint and has not made an order under subsection 24 (3). Nonetheless, the grievor?s complaint did not proceed on to the Pay Equity Hearings Tribunal, as it could have. Employer counsel submitted that when the grievor chose not to pursue a hearing at the Pay Equity Hearings Tribunal, the Review Officer?s decision became final. By contrast, the grievor says he chose to pursue a remedy before the Public Service Grievance Board instead. The employer characterizes this as forum shopping, and asserts that the grievor had already chosen the Pay Equity Commission and received a decision which should be found to be binding on him, and the employer should not have to relitigate the matter. The grievor?s position is that the Review Officer process was more akin to a grievance procedure than litigation, and that in any event he had started this grievance proceeding prior to the pay equity complaint process. If the matter had proceeded to the Pay Equity Hearings Tribunal and they had issued a decision, it would clearly have been final, given the provisions of subsection 30(1) as follows: 30. (1) 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. It is the grievor?s position that the fact that no similar provision is provided in regards to the Review Officer?s decisions, that the finality required for issue estoppel to apply has not been shown. Given the provisions of s. 25(1) of the Pay Equity Act, it would appear that in the case of a finding such as the one made in this case, i.e. that no settlement had been effected, and no order was to be made under s. 24(3), it was the intention of the drafters of the statute that such a case 11 would proceed to a hearing before the Pay Equity Hearings Tribunal. This is a strong indication, at least in the circumstances of a complaint of a breach of the Act, where the Review Officer has made no order, that the Review Officer investigation was not to be the final step in the determination of the issue. There is no evidence, statutory provision or authority before me which persuades me that the fact that the grievor did not pursue a hearing on the matter before the Pay Equity Hearings Tribunal necessarily turns the Notice of Decision into a final decision, if it is not otherwise final. Although it contains factual and legal conclusions, the decision makes no order one way or the other. Although there was a conclusion that no violation of the statute had been shown, the complaint was not dismissed, and there was no suggestion in argument that the Review Officer had the authority to dismiss the complaint. As well, the Review Officer?s ?Notice of Decision? contains an explicit acknowledgment that his process was subject to a de novo hearing before the Hearings Tribunal. The statutory statement of finality applies only to the Pay Equity Hearings Tribunal, and not the Review Officer?s notice of the result of his findings and determination that no order would follow. As a result, there is not the clarity of a final decision in this matter that the Court had in Rasanen. In sum, I am not persuaded in the circumstances that this element of the criteria set out therein has been sufficiently established. With that said, I would like to underline that the facts of this case do not involve an order made by a Review Officer, and thus this decision should not be taken as any comment about Review Officer orders. The question of whether the provisions of The Pay Equity Act concerning orders could, in the facts of some other case, result in a conclusion that an order was a final decision, if it was not challenged at the Pay Equity Hearings Tribunal, is a question that does not arise here and thus does not need to be answered. ii. Was the decision a judicial one? The broad formulation set out in Rasanen of what is necessary to meet the spirit of the test of a judicial proceeding is that the process be designed to be an ?independent, fair, impartial and binding adjudicative process.? It was not suggested that the Review Officer process was not designed to be independent, fair and impartial. The issues raised by the grievor in this case were whether the decision was binding, whether the Review Officer process should be seen as an administrative tribunal when it is the Pay Equity Hearings Tribunal that holds hearings in the usual sense of an administrative tribunal hearing, and whether the process was in fact impartial, 12 given that the grievor maintains the concerns which he expressed in the bias and conflict of interest allegations he made against the Review Officer in the proceedings at the Pay Equity Commission. However, given the finding above on the question of finality, it is not necessary to decide any additional issues as to issue estoppel, including whether alleged defects in the process at the Pay Equity Commission render the process non-judicial and whether the parties were the same. Employer counsel also argued in the alternative that it would be more appropriate to refer these matters back to the Pay Equity Hearings Tribunal for a determination. Whatever might have been the merits of such a proposal if it had been made during the early stages of this proceeding, it is not appropriate after the many days of hearing that have already been held in this matter, and at a point where the grievor has closed his case. In terms of the desirable goal of avoiding relitigation, it would now be counterproductive. III. What is the effect of the settled grievances? The employer argued that, in the event issue estoppel was not found to apply, that the settlements entered into by the grievor resolving two prior grievances should prevent any further evidence about them being lead in this matter, and that previously admitted evidence concerning them should be struck. In July and November 2002 Mr. Chyczij and the employer entered into two memoranda of settlement putting an end to the grievor?s grievance dealing with vacation carry-over and two grievances dealing with the competition for the position of Manager, Pay Equity respectively. In the July settlement, the release clause reads as follows: This memorandum of settlement constitutes full and final settlement of any and all matters which were or could properly have been raised in the grievance. In the November settlement, the release was worded this way: In consideration for the foregoing Mr. Chyczij agrees that the terms of this Settlement satisfy all claims arising out of the foregoing grievances and hereby releases and forever discharges the Crown in Right of Ontario and the Employer, its servants, agents, directors, commissioner, and managers from all actions, causes of action , claims, complaints and demands of every nature and kind arising out of or as a result of or in any way relating to the grievances as referenced in this settlement. 13 The grievor maintains that these release clauses should not preclude his reliance on what he alleges was differential treatment concerning the vacation carry over and job competition issues because they form part of the particulars he filed in 2005, and that his evidence included facts related to these issues and the settlement of the actions. The grievor repeated his allegation that the employer was reacting to his role as spokesperson in what turned out to be an expensive settlement when it denied him the management job he was applying for shortly after he had turned down a settlement offer for the pay equity complaint. He submits that they had become aware that the settlement would cost them more than they thought during the same period as he unsuccessfully applied for the management job. When he did not get the job, he grieved that, and then shortly after he grieved the treatment of his vacation credits. All of these legal processes involved his manager and he has concluded that his activities were not pleasing his supervisors. Given the above circumstances, I am invited to allow the grievor to pursue the issues relating to the incidents grieved despite the settlements because the objection is brought too late, and there should be an exception from the usual jurisprudence because the incidents are part of a pattern. In the grievor?s submission, ?something is going on here?, so that one part cannot be divided off from the other. It is a cumulative course of action, so that it is hard to exclude any part of it. Referring to the Latimercase, cited above, the grievor urges the Board to similarly consider the matter a continuous course of action. In that case, the Board consolidated grievances that had arisen subsequent to the one under consideration, but before the employer had started its case, as the underlying facts were part of a continuous sequence of events. There had been no settlement of any of the issues; it was a question of the appropriateness of consolidating grievances midway through a hearing. The grievor does not argue that the settlement terms were illegal, that he was under duress or any other extraordinary circumstance that would mean that the settlement should not be enforced. Rather, he argues that because he alleges a pattern, these incidents should not be excluded, and relies on the Latimercase, cited above. There is nothing in that decision or in the law of which I am aware concerning settlements generally which stands for the proposition that allegations of a pattern of conduct form a recognized exception to the enforcement of settlements. 14 The Board has found on many occasions, that absent duress, which is not alleged, or some other circumstance that would justify not enforcing clearly worded settlements, it is the Board?s duty to enforce them, rather than to re-open matters covered by them. As the Board wrote in De Boer and the Crown in Right of Ontario (Ministryof Community Safety and Correctional Services) (O?Neil) PSGB #P-2005-1033 at pg. 10: It is very important as a matter of policy that agreements voluntarily signed be upheld, or workplace parties would not be able to have confidence in the finality of agreements made and their ability to govern their affairs accordingly. The question of finality of agreements is fundamental to the entire legal system, and is especially important in the ongoing operation of any workplace. Otherwise, parties would be constantly wondering which agreement they could count on, and which one would be subject to being reconsidered indefinitely in the future. The two settlements from July and November 2002 were final settlements of grievances related to vacation credits and the job competition for Manager of Pay Equity respectively. The first settlement was admitted as part of the grievor?s case, over the objection of a previous employer counsel, as arguably relevant to the grievor?s case on reprisal, and in light of the fact that there is no non-disclosure clause within its terms. The second settlement, which similarly contains no confidentiality or non-disclosure clause, was introduced without objection as part of the grievor?s case. I see no reason to strike any of the evidence given in the grievor?s case about the settlements. At the very least, they are part of the narrative that explains the context of the grievor?s allegations as to the employer?s motivation for denying his tuition assistance request. I agree with the grievor?s submission that it is too late to object to evidence that has already been submitted without objection. Nor do I find it appropriate to prohibit all further evidence about the fact of the settlements or the employer?s reactions to them to the extent that it is relevant to the remaining reprisal allegations. As found in OPSEU (Fletcher) and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) dated June 22, 1999, evidence of events after a grievance are not precluded by a settlement. What is foreclosed by the settlements is any further dispute concerning the facts put in issue by the settled grievances, or remedy for those facts. For example, the grievor?s contention that the vacation credit grievance shows that he was the only person to whom management applied a selective policy is an argument which is covered by the settlement which precludes 15 any matters that were, or could have been, raised in that grievance. Further, the settlements preclude any remedy for the facts of the incidents grieved and settled, whether separately or as part of a pattern of unfair treatment against the grievor. The settlements contained no finding or admission of wrongdoing, and were both explicitly without prejudice or precedent. In terms of narrowing the issues to which the employer must respond, which was the purpose of the employer?s motion, it is unnecessary to present any defense of the incidents grieved and settled in the two 2002 settlements. The main relevance of the settlements to the grievor?s case on tuition assistance, as expressed in his own submissions, is in relation to the timing of the grievance activity and settlements. The grievor?s general allegation is that his activity in acting on behalf of Review Officers in a Pay Equity complaint, competing against managers for promotion and in filing grievances against the employer, was not making him popular with his managers, and that this was an improper part of the employer?s motivation in denying him tuition assistance. That part of this grievance is not precluded by the settlements. *** n the result, I have determined that the second criterion for the application of the principle of I issue estoppel, finality, has not been established, and that in the result, this is not an appropriate case in which to apply it. Further, the grievor is precluded by the settlement of two prior grievances from re-litigating their underlying facts and from receiving any remedy for those matters. Nonetheless, evidence subsequent to those grievances may be relied on, if otherwise relevant to the remaining issues in dispute between the parties. Employer counsel undertook to notify the grievor of what witnesses he intends to call on the resumption of this matter within fourteen days of the ruling on this motion, which would be September 22, 2008. The hearing is scheduled to resume on September 30. th Dated at Toronto this 8 day of September, 2008 _____________________________ Kathleen G. O?Neil, Vice-Chair 16 Appendix Excerpts from the Pay Equity Actreferred to in evidence and argument: 9 (2) No employer, employee or bargaining agent and no one acting on behalf of an employer, employee or bargaining agent shall intimidate, coerce or penalize, or discriminate against, a person, (a) because the person may participate, or is participating, in a proceeding under this Act; (b) because the person has made, or may make, a disclosure required in a proceeding under this Act; (c) because the person is exercising, or may exercise, any right under this Act; or (d) because the person has acted or may act in compliance with this Act, the regulations or an order made under this Act or has sought or may seek the enforcement of this Act, the regulations or an order made under this Act. 16. (1) If the Commission, (a) is advised by an employer or a bargaining agent that no agreement has been reached on a pay equity plan or an amendment to a pay equity plan; or (b) receives a notice of objection to a pay equity plan for employees who are not represented by a bargaining agent or a notice of objection to an amendment of such a plan, a review officer shall investigate the matter and endeavour to effect a settlement. R.S.O. 1990, c. P.7, s. 16 (1); 1993, c. 4, s. 11. Orders by review officer (2) If the review officer is unable to effect a settlement as provided for in subsection (1), he or she shall by order decide all outstanding matters. Investigation of complaints 23. (1) Subject to subsection (2), when the Commission receives a complaint, a review officer shall investigate the complaint and may endeavour to effect a settlement. Idem (2) The review officer shall notify the parties and the Hearings Tribunal as soon as he or she decides that a settlement cannot be effected and that he or she will not be making an order under subsection 24 (3). 17 Decision to not deal with complaint (3) A review officer may decide that a complaint should not be considered if the review officer is of the opinion that, (a) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith; or (b) the complaint is not within the jurisdiction of the Commission. Hearing before Tribunal view officer shall notify the complainant of his or her decision (4) The re under subsection (3) and the complainant may request a hearing before the Hearings Tribunal with respect to the decision. R.S.O. 1990, c. P.7, s. 23. Orders by review officers 24. (1) Where a review officer is of the opinion that a pay equity plan is not being prepared as required by Part II or III.1, the review officer may order the employer and the bargaining agent, if any, to take such steps as are set out in the order to prepare the plan. R.S.O. 1990, c. P.7, s. 24 (1); 1993, c. 4, s. 14 (1); 1996, c. 1, Sched. J, s. 5 (1). Idem (2) Where a review officer is of the opinion that a pay equity plan is not being implemented according to its terms, the review officer may order the employer to take such steps as are set out in the order to implement the plan. R.S.O. 1990, c. P.7, s. 24 (2). Same (2.1) If a review officer is of the opinion that because of changed circumstances a pay equity plan is no longer appropriate, the officer may order the employer to amend the plan in such manner as is set out in the order or to take such steps with a view to amending the plan as are set out in the order. 1993, c. 4, s. 14 (2). Same (3) If a review officer is of the opinion that there has been a contravention of this Act by an employer, employee or bargaining agent, the officer may order the employer, employee or bargaining agent to take such steps to comply with the Act as are set out in the order. 1993, c. 4, s. 14 (3). ?. 25. (1) The Hearings Tribunal shall hold a hearing, (a) if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24 (3); 18 (b) if a request for a hearing, as described in subsection 23 (4) or 24 (6), is received by the Hearings Tribunal; or (c) if a review officer refers a matter to the Hearings Tribunal under subsection 24 (5). R.S.O. 1990, c. P.7, s. 25 (1). (5) Where an employer or a bargaining agent fails to comply with an order under this section, a review officer may refer the matter to the Hearings Tribunal. R.S.O. 1990, c. P.7, s. 24 (5). Same (5.1) The Pay Equity Office shall be deemed to be the applicant for a reference under subsection (5). Same (5.2) On a reference under subsection (5), the Hearings Tribunal shall not consider the merits of the order that is the subject of the reference. Burden of proving compliance (5.3) On a reference under subsection (5), the person against whom the order was made has the burden of proving that he, she or it has complied with the order. 1993, c. 4, s. 14 (5). Hearing before Tribunal (6) An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to the order, and, where the order was made following a complaint but the complaint has not been settled, the complainant may also request a hearing. R.S.O. 1990, c. P.7, s. 24 (6). 30. (1) 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. Reconsideration of decisions, etc. (2)The Hearings Tribunal may at any time, if it considers it advisable to do so, reconsider a decision or order made by it and vary or revoke the decision or order. R.S.O. 1990, c. P.7, s. 30. 19 Parties to proceedings Definition 32. (0.1) In this section, "representative" means, in respect of a proceeding under this Act, a person authorized under the Law Society Act to represent a person or persons in that proceeding. 2006, c. 21, Sched. C, s. 127 (1). Parties to proceedings (1) Where a hearing is held before the Hearings Tribunal or where a review officer investigates for the purposes of effecting a settlement of an objection or complaint, the parties to the proceeding are, (a) the employer; (b) the objector or complainant; (c) the bargaining agent (if the pay equity plan relates to a bargaining unit) or the employees to whom the plan relates (if the plan does not relate to a bargaining unit); and (d) any other persons entitled by law to be parties. R.S.O. 1990, c. P.7, s. 32 (1); 1993, c. 4, s. 19 (1). Review officers 34. (1) The head of the Pay Equity Office shall designate one or more employees of the Office to be review officers. Review officers, duties (2) Review officers shall monitor the preparation and implementation of pay equity plans, shall investigate objections and complaints filed with the Commission, may attempt to effect settlements and shall take such other action as is set out in this Act or in an order of the Hearings Tribunal. Powers (3) A review officer, for the purpose of carrying out his or her duties, (a) may enter any place at any reasonable time; (b) may request the production for inspection of documents or things that may be relevant to the carrying out of the duties; (c) upon giving a receipt therefor, may remove from a place documents or things produced pursuant to a request under clause (b) for the purpose of making copies or extracts and shall promptly return them to the person who produced them; (d) may question a person on matters that are or may be relevant to the carrying out of the duties subject to the person?s right to have counsel or some other representative present during the examination; and (e) may provide in an order made under subsection 16 (2) or 24 (1) that any job class is a female job class or a male job class. 20 Procedure (4) The Statutory Powers Procedure Act does not apply to a review officer and he or she is not required to hold a hearing before making an order authorized by this Act. R.S.O. 1990, c. P.7, s.34. ?.