On December 2, 2019, the Pay Equity Hearings Tribunal (the Tribunal) released its decision in Canadian Union of Public Employees, Local 1328, Applicant v. Toronto Catholic District School Board, (CUPE v. TCDSB),1 in which it dismissed a union’s application for review of an order that was filed almost seven years after the order was released. The decision outlines that a party’s delay in filing applications with the Tribunal under the Pay Equity Act (the Act)2 can result in a presumption of prejudice, justifying the dismissal of the matter as an abuse of process.

BLG represented the Board in the litigation of this matter.

Background

The Tribunal’s decision arises from a dispute between the Toronto Catholic District School Board (the Board) and the Canadian Union of Public Employees, Local 1328 (the Union) as to the re-evaluation of ten jobs under the Act.

The matter began in 2005, when the Union, which represents a bargaining unit of school-based education support staff, filed an application with the Pay Equity Office’s Review Services for the review of ten school-based jobs covered by the Board’s Pay Equity Plan. The Pay Equity Commission appointed a Review Officer, who decided in a December 2006 report that re-evaluating the jobs was not warranted. While this initial file was closed in April 2007, the Union filed a new application with Review Services in July 2007, asserting that the results of the December 2006 report were incorrect, and that a re-evaluation of the jobs was necessary. However, by an Order dated February 28, 2008, a Review Officer affirmed that re-evaluation of the jobs was not required (the Order).

Subsequent to the Order, the parties periodically contacted and met with each other to discuss re-evaluating the jobs. These discussions began in April 2008, when the Union first referred to “disputing” and “appealing” the Order. However, no meaningful progress was made to update the relevant job descriptions until March 2009, when the parties agreed to a timeline for the updating process. The parties exchanged drafts of the job descriptions from 2009 to 2011, and on November 22, 2011, the Board sent its final version of the job descriptions to the Union.

In response, on November 29, 2011, counsel for the Union indicated that the Union did not agree with the job descriptions. Notably, the Union stated at that time it was holding its “planned appeal” of the Order in abeyance pending the completion of the updated job descriptions, and would “advise [the Board] of [its] position in due course.” However, there was no further progress made to the job descriptions after this communication. While the Board requested an update from the Union on May 2, 2012, and periodically urged the Union to approve the job descriptions thereafter, the Union was never willing to do so and failed to respond to the Board’s last email on the subject in January 2015. The Union filed an application for review of the Order under section 22 of the Act on May 1, 2015. Surprised by the Union’s application, the Board brought a motion to dismiss the application as an abuse of process in light of the seven year delay between the date of the Order and the Union's application for its review.

Analysis and decision

The Tribunal found that the Union’s almost seven-year delay in filing its application was both presumptively and actually prejudicial to the Board, and constituted an abuse of process. The Tribunal dismissed the application on this basis.

As a starting point to its analysis, the Tribunal first acknowledged that there is no time limit to file an application for review of an order under section 22 of the Pay Equity Act. However, the Tribunal noted that section 23 of the Statutory Powers Procedure Act (SPPA) authorizes it to dismiss an application if a delay amounts to an abuse of process. Examining the potential effect of these legislative provisions, the Tribunal considered the factually similar decision in Beaton v. Brant Haldimand Norfolk Catholic District School Board (Brant).3 In Brant, a union had a filed an application under section 22 of the Act nearly six years after the contested order. In that case, the Tribunal specifically found that “a delay of several years is presumptively prejudicial,”4 and ultimately dismissed the application as an abuse of process under section 23 of the SPPA.

The Union argued that Brant was wrongly decided but the Tribunal specifically rejected this contention, stating that it “[did] not agree with the Union that the Tribunal in Brant… was wrong when it found that presumptive prejudice had occurred in the facts before it.”5 Rather, Brant was considered a guiding authority for the proposition that a delay can result in presumptive prejudice amounting to an abuse of process in proceedings under the Act.

The Tribunal next considered the Supreme Court’s decision in Blencoe v. British Columbia (Human Rights Commission),6 in which the British Columbia Human Rights Commission took two years to refer sexual harassment complaints made against a former cabinet minister to an adjudicative hearing. While the Union argued that Blencoe prohibited the Tribunal from imposing a judicially created limitation period by holding that delay of a certain duration is too long, the Tribunal rejected this argument as well. Instead, the Tribunal distinguished Blencoe as relating to institutional delay rather than delays created by and between private litigants, noting the “significant difference”7 between the two scenarios.

The Tribunal furthered that while normally, parties against whom applications are filed are at least aware that a proceeding has been commenced against them, “[i]n the case of delay in commencing a proceeding, the responding party does not know that legal action is being contemplated.”8 The Tribunal observed that a party that has no idea that litigation is pending cannot reasonably be expected to preserve documentary evidence, speak to witnesses and preserve their evidence, and otherwise prepare for the eventual litigation. The Tribunal stated that “in the context of delay in filing an application…it is incumbent upon applicants to provide compelling explanations for the applicants’ own delay in pursuing their rights.”9

Finally, the Tribunal noted that other adjudicative tribunals, such as the Ontario Labour Relations Board, find presumptive prejudice for delay in situations where there is no statutory time limit in their relevant statutes. The Tribunal emphasized that these tribunals do not automatically dismiss a matter once a delay has occurred, but instead give the party responsible for the delay an opportunity to explain and to rebut the presumption of prejudice. The Tribunal found that “incorporating presumptive prejudice into a delay analysis under the [Act] is equally appropriate so long as the Tribunal is not effectively creating a judicial limitation period.”10

In light of these considerations, the Tribunal ultimately held that “a party in a pay equity matter has an obligation to move reasonably expeditiously in seeking review of a review officer’s order under the Act.”11 The Tribunal further concluded that when considering whether to dismiss a pay equity matter as an abuse of process, it may consider the following non-exhaustive list of factors:

  • the length of the delay;
  • the explanation for the delay;
  • prejudice;
  • the nature of the case and its complexity;
  • the facts and issues in dispute;
  • the purpose and nature of the proceedings;
  • the nature of the various rights at stake in the proceedings; and
  • the extent to which the responding party contributed to (or waived) the delay.12

With these principles in mind, the Tribunal proceeded to consider whether it should dismiss the Union’s application as an abuse of process. First, the Tribunal noted that even if measured from November 29, 2011, when the Union sent an email to the Board, mentioning the possibility of an appeal of the Order, the Union still took another three and a half years to file its application. Unsurprisingly, the Tribunal characterized this delay as “very lengthy…by any standard.”13

Second, the Tribunal considered that the Board had done nothing to contribute to the delay, which was instead caused by the Union’s “inefficiency and indecision” resulting from various Union president changeovers throughout the years.14

Third, and “significantly,” the Tribunal found that the Union provided no compelling explanation for the three-and-a-half year delay and was not justified in waiting until 2015 to file its application, since there was no change in circumstance that would have prompted the Union to finally appeal the Order.15

Fourth, the Tribunal held that “a delay of three and half years is presumptively prejudicial to a ... proceeding.”16 Notably, while the Tribunal declined to decide at what point a delay becomes presumptively prejudicial, it observed that other tribunals have found this to be the case after one year.17

Lastly, the Tribunal found that the Board had suffered actual prejudice due to the Union’s delay. Noting that 11 key personnel and witnesses had either retired or resigned from their positions with the Board, and that another had passed away, the Tribunal found that the prejudice arose

“…from the number of individuals with knowledge of the relevant events who are now disengaged from the workplace, and the fact that the [Board’s] ability to rely upon their institutional knowledge to prepare for the hearing, and to have them speak to the processes and activities that took place at the relevant time is compromised.”18

In concluding its decision, the Tribunal emphasized that the Board was not under the obligation to remain prepared for a potential appeal indefinitely. Reiterating that the Act “does not include a record keeping obligation, much less require an employer to maintain records indefinitely so as to defend itself in the event that an applicant seeks review of an Order several years after the fact,”19 the Tribunal dismissed the Union’s application under section 23 of the SPPA.

The takeaways

The Tribunal’s decision affirms that a party’s delay in filing an application under section 22 of the Act can be presumptively prejudicial and ultimately lead to dismissal of an application as an abuse of process. While the decision leaves the question of when a delay becomes presumptively prejudicial for another day, it encourages parties to seek review of the orders made under the Act in a timely way.