Janet E. Borowy

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 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 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.

The responding Participating Nursing Homes requested a stay of proceedings pending an appeal to the Court of Appeal regarding the use of the proxy method of comparison for pay equity maintenance.

The Pay Equity Hearings Tribunal declined to grant a stay at this stage, noting that the immediate next steps in the pay equity process—specifically the development and application of a gender-neutral comparison system (GNCS)—do not require the proxy methodology.

The Tribunal directed the parties to recommence negotiations and implementation of the GNCS, and to refer any substantive impasses to Review Services.

The applicant union filed a human rights application alleging systemic sex discrimination against casual Customer Service Representatives, who are predominantly female, regarding their wages and terms of employment.

The respondents raised preliminary issues, seeking dismissal for lack of timeliness, no reasonable prospect of success, and arguing that the Pay Equity Hearings Tribunal had exclusive jurisdiction over the compensation issues.

The Tribunal dismissed the preliminary objections, finding that the allegations constituted a series of incidents, that the Human Rights Tribunal of Ontario has concurrent and broader jurisdiction over sex-based discrimination in compensation than the Pay Equity Hearings Tribunal, and that the union was not in a conflict of interest.

The applicant filed human rights applications alleging that his former employer and union discriminated against him on the basis of age by negotiating a severance settlement that excluded him.

The applicant had retired and was receiving an unreduced pension as of the trigger date for the settlement, which disqualified him from receiving severance pay.

The Tribunal dismissed the application against the employer because it played no role in selecting the trigger date.

The Tribunal also dismissed the application against the union, finding that the trigger date was chosen for non-discriminatory reasons and the applicant's exclusion was due to his retirement status, not his age.

The union applied for a review of a Review Officer's order directing the implementation of a pay equity plan using the proportional value method retroactive to January 1, 2006.

The union argued the parties had agreed to a Combined Method (job-to-job and proportional value) and that the Pay Equity Act required it.

The Tribunal found no factual agreement to use the Combined Method and held that the Act did not compel its use since pay equity had already been achieved under the original plan.

The application was dismissed.