Janet E. Borowy

The Participating Nursing Homes (PNH) appealed a Divisional Court decision that upheld a Pay Equity Hearings Tribunal order.

The Tribunal had directed the PNH and unions to negotiate a gender-neutral comparison system (GNCS) for maintaining pay equity, specifically to address changes in job duties and ensure ongoing compliance with the Pay Equity Act.

The PNH argued that the Act did not require them to tie their maintenance obligation to the proxy employer's historical valuation of male jobs.

The Court of Appeal dismissed the appeal, affirming the Tribunal's authority to ensure compliance with the Act and the necessity of ongoing comparison, including through the proxy method, to maintain pay equity.

The Court of Appeal for Ontario dismissed an appeal from the Divisional Court, which had found the Pay Equity Hearings Tribunal's decision unreasonable.

The case concerned the interpretation of the Pay Equity Act, specifically whether the statutory proxy method, used to establish pay equity in female-dominated workplaces, must also be used to maintain it.

The Tribunal had ruled that the proxy method was not required for maintenance, leading to an internal comparison method.

The Court of Appeal affirmed that the Tribunal's interpretation was unreasonable, as it ignored the Act's purpose, scheme, and wording, which necessitate an ongoing comparison to male (or deemed male) comparators to redress systemic gender discrimination.

The matter was remitted to the Tribunal to specify procedures for maintaining pay equity using the proxy method.

The Ontario Nurses' Association (ONA) sought an urgent interlocutory injunction against four long-term care (LTC) facilities experiencing COVID-19 outbreaks, alleging breaches of Chief Medical Officer of Health (CMOH) Directives regarding personal protective equipment (PPE) and infection control.

The ONA contended that the facilities failed to provide necessary PPE, particularly N95 masks, and implement appropriate administrative controls like isolating and cohorting residents and staff.

The facilities argued they complied with directives and that the ONA sought control over scarce resources.

The court found that the matter, though a labour dispute, required the court's inherent jurisdiction due to the inability to expedite arbitral processes.

Applying the RJR-MacDonald test, the court found a serious question to be tried and irreparable harm to nurses and residents.

The balance of convenience favored granting the injunction, prioritizing health and safety.

The court ordered the LTC facilities to provide nurses with access to N95 respirators and other appropriate PPE based on point-of-care assessment and to implement administrative controls as per CMOH Directives.