Mary Cornish

The Ministry of Health appealed a Divisional Court decision dismissing its application for judicial review of Human Rights Tribunal of Ontario decisions.

The Tribunal had found that the Ministry engaged in systemic gender discrimination against Ontario midwives by abandoning equitable compensation principles established in 1993, leading to a significant compensation gap between midwives and community health clinic physicians.

The Court of Appeal affirmed that the standard of review for the Tribunal's decisions is reasonableness, even post-Vavilov.

The Court held that the Adjudicator's liability and remedy decisions were reasonable, as they revealed a rational chain of analysis supported by the evidence, and dismissed the appeal.

The Ministry of Health applied for judicial review of decisions by the Human Rights Tribunal of Ontario finding that the Ministry engaged in systemic gender discrimination in setting compensation for midwives.

The Tribunal found that the Ministry had abandoned historical compensation principles that aligned midwives with community health centre physicians, leading to an inequitable compensation gap.

The Divisional Court dismissed the application, holding that the Tribunal's findings of adverse treatment and the connection to sex were reasonable.

The Court also upheld the Tribunal's remedial orders, which included a 20% retroactive compensation increase and $7,500 per eligible midwife for injury to dignity.

The moving party sought a stay of a Human Rights Tribunal of Ontario remedial decision pending the outcome of its judicial review application.

The moving party argued that compliance with the remedial orders would divert critical resources away from the COVID-19 pandemic response.

Applying the RJR-MacDonald test, the Divisional Court found that the moving party established a serious issue to be tried, irreparable harm to the public interest, and that the balance of convenience favoured a stay.

The motion was granted, and the Tribunal's orders were stayed until 10 days following the release of the judicial review decision.

A case management endorsement providing directions for an upcoming virtual hearing before a three-judge panel of the Divisional Court during the COVID-19 pandemic.

The court outlined procedures for videoconferencing, electronic filing of materials, and the format of the hearing.

The court also directed that Ontario's motion to stay the impugned decision be adjourned to the panel hearing the application, rather than being heard by a single judge.

A case management endorsement setting out the procedure for an upcoming virtual hearing before a three-judge panel of the Divisional Court during the COVID-19 pandemic.

The court provided directions on electronic filings, videoconferencing protocols, and public access.

The applicant's motion to stay the impugned decision was adjourned to the panel, with the court declining the respondent's request to adjourn it to a single judge after the hearing.

These applications concerned whether pay equity achieved through proxy pay equity plans in female-dominated long-term care workplaces must be maintained by continued reference to proxy establishments.

The Tribunal held that the Pay Equity Act imposes a maintenance obligation on proxy plans, but that maintenance does not require ongoing monitoring of changes in compensation or job value in the proxy employer’s establishment.

Instead, maintenance is to be carried out internally by monitoring the compensation/value relationship already established for the key and non-key female job classes.

The Tribunal also rejected the section 15 Charter challenge and held that workplace changes affecting job value made the existing $1.50 plans inappropriate absent a negotiated gender-neutral comparison system.

The matter was adjourned for nine months with directions to negotiate an amendment to the plans.

The applicant filed a human rights application alleging systemic gender-based compensation discrimination against midwives spanning two decades.

The respondent brought a preliminary request to dismiss all allegations relating to events prior to November 27, 2012, arguing they fell outside the one-year limitation period in section 34(1) of the Human Rights Code.

The Tribunal dismissed the request, finding that the detailed allegations of historical practices, policies, and attitudes formed an interconnected web that constituted a 'series of incidents' under section 34(1)(b), making the entire application timely.

The respondent brought a Request for Order During Proceedings seeking to dismiss the Application to the extent it related to events outside the one-year limitation period under section 34(1) of the Human Rights Code.

The Tribunal issued a bottom-line decision dismissing the request, finding that the Application as pleaded constituted a 'series of incidents' within the meaning of sub-section 34(1)(b) of the Code.

Full reasons were to follow.

The union applied to the Pay Equity Hearings Tribunal concerning a Review Officer's order regarding the gender neutral comparison system (GNCS) negotiated with the responding hospitals.

The hospitals argued the standard of review was reasonableness and could be decided without evidence, while the union argued for correctness and sought to present evidence on the history and scope of the disputed subfactor.

The Tribunal majority directed that the union be afforded the opportunity to present its case on the merits and deferred the determination of the standard of review.

A dissenting member would have decided the standard of review first.

Following an application for judicial review involving the interpretation of the Pay Equity Act and the Human Rights Code, the successful respondent sought costs of $47,506.45 on a partial indemnity basis.

The applicant argued for a lower quantum of $10,000 based on expectations in the labour relations community.

The Divisional Court found the respondent's request exceeded reasonable expectations but acknowledged the importance of the case, awarding costs to the respondent in the amount of $20,000 inclusive of HST and disbursements.

The applicants sought judicial review of two decisions of the Pay Equity Hearings Tribunal.

The Tribunal had dismissed applications by the unions to eliminate different rates of progression through the wage grids of comparable male and female job classes, holding that the Pay Equity Act does not require the harmonization of wage grids.

The Tribunal also rejected the argument that its interpretation of the Act authorized a contravention of the Human Rights Code.

The Divisional Court dismissed the applications for judicial review, finding that the Tribunal's decisions were reasonable and that the Pay Equity Act does not require or authorize a contravention of the Human Rights Code.

The applicant union filed an objection under the Pay Equity Act, arguing that the wage grid for female job classes should be compressed to match the shorter wage grid of their male comparators in another bargaining unit.

The Tribunal found that the union was not estopped from raising the issue, but concluded that the Pay Equity Act does not require the equalization of wage grid structures, only the adjustment of job rates.

The Tribunal also dismissed the argument that the differing grid structures violated the Human Rights Code, noting that the Pay Equity Act is a comprehensive scheme akin to a special program.

The application was dismissed.

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 employer filed an application under section 24(6) of the Pay Equity Act.

The Pay Equity Office filed a motion seeking standing to intervene.

The Tribunal granted an extension of time for the union and affected employees to file responses, as the union was not originally given notice.

The Tribunal also set a schedule for written submissions regarding the Pay Equity Office's motion to intervene and any objections to the union's standing, and cancelled the scheduled pre-hearing consultation.

The employer applied for a review of a Review Officer's order concerning its pay equity processes.

The employer argued it had achieved pay equity prior to the certification of the displacing trade union and relied on a pay equity agreement reached with the predecessor union.

The Tribunal found that the employer's initial pay equity analysis was flawed due to inadequate job content recording and failure to compare total compensation.

Consequently, the subsequent pay equity agreement with the predecessor union was based on a false premise and did not achieve pay equity.

The Tribunal confirmed the Review Officer's finding regarding the employer's establishment but varied the order, directing the employer to achieve pay equity within 90 days and provide all relevant information to the displacing union, without compelling the parties to negotiate the achievement of pay equity under Part I of the Act.

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.

The applicant union sought an order requiring the employer hospital to adjust the wage grids for female job classes in its clerical bargaining unit to mirror the wage grids for male comparator job classes in its service bargaining unit, including the rate of progression through the grid.

The Pay Equity Hearings Tribunal dismissed the application, finding that the Pay Equity Act only requires adjustments to the 'job rate' (the highest rate of compensation available to a job class) to achieve pay equity.

The Act does not mandate the equalization of entire wage grids or rates of progression below the job rate, which remain matters for collective bargaining.

The respondent employee accepted a severance package and signed a full and final release of all claims against the applicant employers.

She subsequently filed a complaint under the Pay Equity Act.

The Pay Equity Hearings Tribunal held that the release did not bar her complaint because the employers had not complied with the Act prior to the release.

On judicial review, the Divisional Court quashed the Tribunal's decision, holding that parties may contract out of the Pay Equity Act when settling a claim, and the unequivocal release barred the employee's complaint.

The applicant employer sought judicial review of a Pay Equity Hearings Tribunal decision that allowed a former employee to pursue a pay equity complaint despite having signed a full and final release upon termination.

The Divisional Court (majority) quashed the Tribunal's decision, holding that the release was a binding contract that barred the complaint, and the Tribunal's interpretation to the contrary was incorrect.

A dissenting opinion would have dismissed the application, emphasizing the systemic and proactive nature of the Pay Equity Act and the Tribunal's specialized jurisdiction.

The applicant employer applied to revoke a Review Officer's Order requiring it to pay outstanding pay equity adjustments.

The employer argued that it was not required to make the payments because it had not received government funding, and sought to raise new arguments regarding the validity of the pay equity plan.

The Tribunal held that the employer could not raise new issues that were not canvassed at Review Services.

Furthermore, the Tribunal found that a lack of government funding is not a valid defense under the Pay Equity Act to an employer's obligation to pay annual adjustments.

The application was dismissed for failing to disclose a prima facie case.