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HomeMy WebLinkAbout1983-0774.Meek.86-09-19September 19, 1986 MEMORNADUM TO: All Vice-Chairmen and Members of the Grievance Settlement Board and the Public Service ~Grievance Board RE: 7?4/83 OPSEU (Dr. F.I. Meek) and Crown/Ontario (Ministry of Health) (Draper/Perrin/Stapleton) Enclosed hsrewith, for your information, is a copy of the Notice of Application for Judicial Review together with a copy of the Divisional Court's decision in the above-noted matter. TAI/lp Encl. (Action No. T?bb /G ) SUPREME COURT OF ONTARIO BETWEEN: ONTARIO'PUBLIC SERVICE EMPLOYEES UNION and F. I. MEEK Applicants - and - THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF HEALTH) Respondents APPLICATION UNDER Section 2 of the Judicial Review Procedures Act NOTICE OF APPLICATION EOR JUDICIAL REVIEW TO THE RESPONDENTS A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicants. The claim made by the Applicants appears on the following page< THIS APPLICATION for Judicial Review will come on'for a hearing before the Divisional Court on a date and at a place to be fixed by the Registrar of the Divisional Court. The Applicants request that this application be heard at Toronto. -2- IF YOU WISH TO OPPOSE THIS ACTION, you or an Ontario lawyer acting for you must forthwith prepare a Notice of Appearance in Form 38C prescribed by the Rules of Civil Procedure, serve it on the Applicants' lawyer, or where the Applicants do not have a lawyer, serve it on the Applicants, and file it, with proof of service, in the office of the Divisional Court within thirty days after service on you of the Applicants' Application Record, or not later than 2:00 p.m. on the day before the hearing, whichever is earlier. IF YOU FAIL TO APPEAR AT THE HEARING, JUDGEMENT MAY BE GIVEN IN YOUR ABSENCE AND,WITHOUT FURTHER NOTICE TO YOU. TO: Attorney General of Ontario, 18th Floor, 18 King Stregt.East, Toronto, Ontario. M5C lC5 TO: Grievance Settlement Board, Suite 2100, 180 Dundas Street West, Toronto, Ontario. M5G 128 Issued by 4.9 &ciw Registrar 0 Address of &L Divisional Court Office Osgoode Hall, 130 Queen St. West, Toronto, Ontario. MSH 2N5 . . -3- APPLICATION 1. The Applicants make application for an Order quashing the Decision dated April 24, 1985, of the Crown Employees Grievance Settlement Board and for an Order remitting the matter to a differently constituted panel of the Board. 2. The grounds for the application are: (a) (b) (c) The Board erred in law and juris- 'diction in that it asked itself the wrong question. Instead of asking itself what job the grievor was in fact performing, the Board asked itself what were the qualifications for the job claimed by the Grievor. The Board erred in law and juris- diction by giving to the Psycholo- gists 'Registration Act an interpretation which was incorrect. The Board committed a jurisdictional error and denied the grievor a fair hearing by failing to take into account relevant evidence before it. 3. The following documentary evidence will be relied upon at the hearing of the application: -4- (a) Affidavit of Joanne Miko (b) Such other and further material as counsel and the Court may advise. DATED at TORONTO this &&day of , 1985. CAVALLUZZO, HAYES & LENNON 43 Madison Avenue Toronto, Ontario .MSR 2S2 (964-1115) Paul J: J. Cavalltizzo Solicitors for the Applicants ONTARIO PUBLIC SERVICE EMPLOYEES UNION and F. I. MEEK ". THE CROWN IN RIGHT OF ONTARIO ( MINISTRY OF HEALTH ) (Action No. 1 SUPREME COURT OF ONTARIO PROCEEDING COMMENCED AT TORONTO NOTICE OF APPLICATION FOR JUDICIAL REVIEW CAVALLUZZO. HAYES & LENNON 43 Madison.Avenue Toronto, Ontario. MSR 252 (964-1115) Paul J. J. Cavalluzzo Solicitors for the Respondent i; No. 806/85 IN THE SUPREME COURT OF ONTARIO DIVISIONAL COURT ,REID, SUTHERLAND and BWASCHUR, JJ. BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (F.I. Meek) Applicant -and- THE CROWN IN RIGHT OF ONTARIO (Ministry of Health) Respondent ,’ R. Anand lor the Applicant i ; D.W. Brown, Q.C. ; 'for the Respondent ) ; !. ; Heard: June 3, 1986 EWASCHUR. J.: This is an application for judicial review to quash an order of the Crown Employees Grievance Settlement Board dismissing a grievance of Dr. Meek. The Board, by majority decision, held that Dr. Meek was properly classified for employment purposes. This application raises the issue of whether a professional apprentice who does the work of a certified professional must be classified at the same level as the latter for employment and pay purposes. i ., -2- FACTUAL BACKGROUND Dr. Meek was hired by,the Ontario Ministry of Health in December 1979 and classified as a Psychometrist 2 at St. Thomas Psychiatric Hospital. At that time, Dr. Meek held a Master of Psychology degree. Dr. Meek'furthered his education and by June 1982 he had received a doctorate degree in psychology. He immediately applied for registration as a psychologist pursuant to the Psychologists Registration Act R.S.O. 1980, c. 404. As a psychometrist, Dr. Meek was only allowed to measure and assess psychological data. As a psychologist, Dr. Meek could also actually treat patients. On June 22, 1982, Dr. Meek was advised by the Ontario Board- of Examiners in Psychology that his application for temporary registration had been approved. Temporary registration is permitted in respect of persons who have received a doctorate in psychology but who have not yet completed one year of experience acceptable to the Board and passed the Board's examinations: Psychologists Registration g, supra, ss.6(1) and. 10(l). Only on completing all three requirements is a candidate awarded a certificate of registration as a registered psychologist. -3- The Ontario Board of Psychology requires that the approved year of experience be under the supervision of two registered psychologists, one of whom acts as a primary supervisor and the other of whom acts as a study supervisor. The supervisors complete work appraisal forms of the candidate's performance on a quarterly basis and submit the forms to the Board of Examiners. Dr. Meek eventually received approved assessments of his work performance from June 1, 1982 to May 31, 1983. He also passed the Board of Examiners exams by the end of May, 1983. Finally on June 3, 1983, the Registrar of the Ontario Board of Examiners in Psychology notified Dr. Meek that he had been granted full registration under the Psychologists Registration Act, e, and that he would receive his certificate of registration in due course. It should be noted that no person, with certain exceptions,. may represent himself or herself as a psychologist unless he or she holds a certificate of registration: Psychologists Registration Act, D, s. 11(l). The Ministry of Health later reclassified Dr. Meek so that as of June 1, 1983,.he was reclassified from Psychometrist 2 ist 1. to Psycholog i, On September 30, 1983, Dr. Meek filed his grievance requesting that he be classified as a Psychologist 1 with full back pay including benefits and yearly increments retroactive to June 21, 1982 when he commenced his year of experience, i.e. his year of internship. The Ministry denied Dr. Meek's grievance. He then appealed to the Grievance Settlement Board. It appears that the Board agreed with Dr. Meek that he had performed the work of a Psychologist 1 during his year of internship. The Board, however, denied Dr. Meek's grievance on the ground that a condition of classification within the Psychologist class series, including the position of Psychologist 1 with the Ministry of Health, is registration under the permanent register of psychologists pursuant to the Psychologists Registration Act, s. APPLICANT'S GROUNDS OF REVIEW The applicant submits that the Board's award must be quashed on two grounds: (11 that the Board misinterpreted the Psychologists Registration Act; and (2) that the Board asked the'wrong question in inquiring into Dr. Meek's job qualification, as opposed to the job he a,ctually performed. -5- (1) Did the Board misinterpret the Act? ,It is accepted that the Board must be correct in its interpretation of the Psychologists Registration Act since the Act is not its constituent or home statute: McLeod et al. v. Egan et al. (19741, 46 D.L.R. (3d) 150 (S.C.C.1. Thus, curia1 deference - is not owing to the Board's reading,of the Act. - In the present case, the job classification for Psychologist 1 required that the employee be a registered psychologist. The Board interpreted this to mean that the employee must be permanently registered, thereby holding a certificate of registration. I am of the opinion' that the Board was correct in holding that the job classification called for permanent, and not merely temporary,. registration. Although s. l(c) of the Act - states that "registered psychologist" means a person who is registered under this Act (and thus could include temporary registration), s. l(b) clarifies this by stating that "certificate of registration" means a certificate of registration as a registered psychologist. The Board had to interpret the Psychologists Registration Act, supra only to ascertain the meaning of "registered psychologist" in the job classification. In light of the context of the total job classification and the Act read as a - whole, it is clear that the job classification required that a -6- Psychologist 1 be permanently registered and hold a certificate of registration available only to a person who has a doctoral degree in psychology, has successfully completed one year of internship, and passed the requisite Board exams. Thus, the Board did not err in its interpretation of the Act or of the job classification. - (2) Did the Board ask the wrong question? The applicant submits that the Board erred by asking itself the wrong question. The applicant contends that the Board asked itself what were the job qualifications, instead of asking itself what job the griever was in fact performing. The applicant relies, in particular, on the judgment of the Divisional Court in Ontario Public Service Employees Union v. The Queen in right of Ontario et al. (19821, 40 O.B. (2d) 142. At P. 146, Callaghan J., in giving the judgment of the Court, states the classic tests: On a classification grievance the Board is generally mandated to consider two matters, namely whether or not the griever's job measured against the relevant class standard comes within a, higher classication which he seeks and, even if he fails to fit within the higher class standard, whether there are employees performing the same duties. in a higher, more senior classification. -7- The policy justification underlying the above tests is that a classification sy+tem must ensure that employees who perform substantially the same work are paid the same wages. In a Charter of Rights context, the equality provision would require that persons similary situated be treated similarly. In the present case, it is agreed that the second test does not apply. The issue then is whether Dr. Meek performed substantially the same duties during his year of internship as did permanently registered psychologists. It is my firm conclusion that he did not. The job Dr. Meek performed was that of a Psychologist 1; however, he did so under supervision during a training. period. At that time it was uncertain whether he would successfully complete his year of inte~rnship and pass his Board exams. He was not similarly situated to a certified psychologist. Dr. Meek was doing the job of a supervised intern psychologist - not as a certified psychologist which he hoped to be. It is, therefore, my opinion that the first test formulated by Callaghan .I. in Ontario Public Service Employees e, supra, cannot be literally applied to a professional apprentice during his period of "practicum" before receiving his professional status. Applied literally, the test would require . -8- that articled iaw students, interning doctors and all forms of professional apprentices be classified and paid the same as their certified superiors. This result would offend basic common sense. CONCLUSION In the result, the application should be dismissed with costs to the respondent. Released: August 15;1986 No. 806185 INTHE SUPREME COURT OF ONTARIO DIVISIONAL COURT REID, SUTHERLAND and EWASCHUK, JJ. BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (F.I. Meek), Applicant ~-and- THE CROWN IN RIGHT OF ONTARIO (Ministry of Health) Respondent : --------------------------------- JUDGMENT --------------------------------- EWASCHUK, J. Released: August 15, 1986