Fay Faraday

The applicant employer sought a hearing before the Pay Equity Hearings Tribunal regarding a Review Officer's order concerning the maintenance of pay equity using the proxy method of comparison.

The Tribunal was tasked with specifying procedures to ensure employees who established pay equity through the proxy method continue to have access to male comparators for maintenance, following a Court of Appeal decision.

The Tribunal held that an organization that established its pay equity plan using the proxy method must continue to use it for maintenance unless changed circumstances under section 14.1 of the Pay Equity Act permit another method.

The Tribunal directed the parties to identify a proxy employer, request information, evaluate key female job classes, and determine whether any pay equity gaps have re-emerged, noting that arguments regarding non-discriminatory factors for pay differentials should be addressed under section 8 of the Act.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.

The applicant union sought judicial review of an interest arbitration award that declined to compress the wage grid for registered nurses and nurse practitioners.

The union argued the existing grid was discriminatory and that correcting it was exempt from the 1% compensation cap under Bill 124.

The Divisional Court dismissed the application, finding the arbitrator reasonably concluded that the interest arbitration process was not the appropriate forum to make the necessary adjudicative findings of specific Human Rights Code breaches by 131 separate employers, nor to usurp the ongoing pay equity process.

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 appellant unions challenged the constitutionality of the federal Expenditure Restraint Act (ERA) and the Government's conduct in collective bargaining, arguing they infringed their members' freedom of association under s. 2(d) of the Charter.

The ERA imposed wage increase caps and rolled back previously negotiated increases in response to the 2008 global economic crisis.

The Court of Appeal held that the ERA and the Government's conduct did not substantially interfere with the collective bargaining process.

In the alternative, any limits on s. 2(d) rights were demonstrably justified under s. 1 of the Charter given the pressing and substantial objective of managing the economic crisis.

The court also upheld the application judge's decision to admit and prefer the evidence of the Government's participant expert over the unions' expert.

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 appellants brought an application alleging that the federal and provincial governments violated sections 7 and 15 of the Charter by failing to implement effective strategies to reduce homelessness and inadequate housing.

The respondents successfully moved to strike the application on the basis that it disclosed no reasonable cause of action and was not justiciable.

The Court of Appeal dismissed the appeal, holding that the application raised political rather than legal issues, lacked a judicially discoverable and manageable standard, and was therefore not justiciable.

The applicant unions brought an application seeking a declaration that the Expenditure Restraint Act is unconstitutional and of no force and effect, arguing it violated their members' freedom of association under s. 2(d) of the Charter by rolling back and capping wage increases.

The Superior Court of Justice dismissed the application, finding that the legislation did not substantially interfere with the freedom of association, as it applied broadly across the federal public sector and did not target associational activities.

The court further held that even if there was a breach of s. 2(d), it would be saved under s. 1 of the Charter as a demonstrably justified response to the 2008 global economic crisis.

A proposed intervenor sought leave to participate extensively in a constitutional application challenging the Restoring Mail Delivery for Canadians Act, legislation enacted to end a postal workers’ strike.

The proposed intervenor requested rights to adduce evidence, cross‑examine witnesses, and make full submissions similar to the parties.

The court applied Rule 13.02 of the Rules of Civil Procedure and the governing intervention principles, including whether the intervenor would make a useful contribution without causing injustice to the existing parties.

The court held that the proposed evidence was largely argumentative and duplicative of arguments available to existing parties, particularly Canada Post and the Attorney General.

Finding the intervention would not assist the court and could expand the record unnecessarily, the motion was dismissed.

The applicants brought an application alleging that the provincial and federal governments breached ss. 7 and 15 of the Charter by making decisions and implementing program changes which eroded access to affordable housing.

The respondents brought motions to dismiss the application on the grounds that it did not disclose a reasonable cause of action and that the issues raised were not justiciable.

The court granted the motions and dismissed the application, finding that s. 7 does not impose a positive obligation on the state to provide affordable housing, and the impugned decisions did not deny the applicants a benefit given to others under s. 15.

The court also held that the issues raised were not justiciable as they involved broad policy choices.

The Equal Pay Coalition brought a motion for leave to intervene as a friend of the court in a judicial review of a decision by the Pay Equity Hearings Tribunal.

The underlying application concerned whether the employer failed to maintain compensation practices providing for pay equity.

The employer opposed the intervention, arguing the Coalition would not make a useful contribution and would duplicate the union's submissions.

The Divisional Court granted the motion, finding the Coalition could bring a broader perspective and constructive contribution to the issues, particularly regarding international conventions and the relationship between the Pay Equity Act and the Human Rights Code.

The intervention was granted subject to strict limits on the Coalition's participation.

The applicant filed two Requests for Order During Proceedings before the Human Rights Tribunal of Ontario.

The first request sought to amend the Application to allege discrimination in contracts rather than employment, which the respondents consented to while seeking to amend their Response.

The Tribunal granted both parties' requests to amend their pleadings.

The second request sought production of documents, which the Tribunal dismissed as premature because the time for disclosure under Rule 16 had not yet been triggered by a Confirmation of Hearing.

The applicants sought judicial review of an interlocutory decision by the Agricultural, Food and Rural Affairs Tribunal adding a former human resources administrator as a respondent party to an unfair labour practice complaint.

The applicants also alleged a reasonable apprehension of bias against the Tribunal.

The Divisional Court held that the Tribunal exceeded its jurisdiction by adding the administrator as a party, as the complaint contained no allegations that she personally breached the Agricultural Employees Protection Act.

The Court dismissed the bias allegations, finding that the applicants had waived their objections and failed to establish a reasonable apprehension of bias.

Canada Post conducted a covert video surveillance investigation into mail theft by employees.

After the investigation concluded and criminal charges were laid, Canada Post dismissed the employees caught on tape.

The union grieved the dismissals.

The arbitrator ruled that under article 10.02 of the collective agreement, Canada Post was required to give notice of alleged misconduct within ten days of identifying an employee on the videotape, and failure to do so precluded reliance on the misconduct for dismissal.

The Divisional Court dismissed Canada Post's application for judicial review.

On appeal, the Court of Appeal held that the arbitrator's interpretation of the collective agreement and his factual finding on when the notice period commenced were not patently unreasonable.

The appeal was dismissed.