CITATION: Corporation of the City of Windsor v. Moor, 2018 ONSC 2055
DIVISIONAL COURT FILE NO.: 341/17
DATE: 20180425
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
P. SMITH, THORBURN and MATHESON JJ.
BETWEEN:
CORPORATION OF THE CITY OF WINDSOR
Applicant
– and –
SHIRLEY D. MOOR AND CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 543
Defendant/Respondent
COUNSEL:
Anna Vannelli, for the Applicant
Gavin Leeb and Paul O’Ryan, for the Respondent, Canadian Union of Public Employees
David Wright, for the Respondent, Shirley D. Moor
HEARD at Toronto: March 29, 2018
P. SMITH J.
Overview
[1] The Applicant, City of Windsor, (“Applicant”) seeks judicial review of a decision of a Panel of the Pay Equity Hearings Tribunal (the “Panel”) that found that the Applicant and Canadian Union of Public Employees, Local 543 (“Respondent Union” or “CUPE”) had violated the Pay Equity Act, R.S.O. 1990, c. P.7 (the “Act”) with respect to the wages paid to Shirley Moor (“Personal Respondent” or “Moor”) and declined to hold the Respondent Union partially liable for compensating the Personal Respondent.
[2] The Applicant asks this court to quash the Decision of the Pay Equity Hearings Tribunal (the “Tribunal”) dated April 11, 2017, which Decision upheld the Pay Equity Commission Review Officer’s Order dated April 27, 2015, that concluded the Applicant had violated sub-section 7 (1) and the Applicant Corporation and the Respondent Union had violated sub-section 7 (2) of the Act.
Background
[3] The Respondent Union represents a bargaining unit of several classifications of employees within the Applicant’s organization as enumerated is Schedules “B”, “C” and “E” of the Collective Agreement. The Personal Respondent, Moor, was at all times employed by the Applicant as a Seasonal Recreation Staff member in Schedule “E” in the position of a Facility Attendant.
[4] The Facility Attendant position occupied by the Personal Respondent is a “female-dominated job class” within the Applicant’s organization.
[5] The factual and historical context giving rise to this matter is described in an Agreed Statement of Facts that was entered as Exhibit 1 at the hearing before the Tribunal. In the Agreed Statement of Facts the Applicant and Respondent Union assert that the sole purpose of the wage reduction to the Schedule “E” positions was to secure cost savings to allow the Applicant to reduce its operating costs for the construction and staffing of a new Family Aquatic Complex (FAC). The Personal Respondent alleges that the wage reduction was implemented to circumvent the provisions of the Act.
[6] The construction of the FAC commenced in February 2012. Two possible operating models were presented to the Applicant’s City Council: a corporation operation model and a YMCA partnership model. The latter model was based upon the contracting out provision contained in Article 28 of the Collective Agreement which specifically applied to Schedule “E” employees.
[7] The Applicant gave the Respondent Union notice of its intention to proceed under the contracting out provision in the Collective Agreement. As a result of the possibility that the Applicant would decide to proceed with construction of the FAC based upon the YMCA partnership model and the potential impact of having 60 new positions contracted out, the the Respondent Union made a number of proposals to the Applicant. The core issue in the negotiations was whether the Respondent Union would agree to the Applicant’s requirement to secure front-end cost savings.
[8] There is no suggestion or allegation that negotiations were conducted in bad faith.
[9] The Union submitted an initial proposal suggesting the establishment of a pay grid step process for each individual employee listed in Schedule “E” which, for the first time would subject Seasonal Recreation positions in Schedule “E” to a pay grid process consistent with all other classifications in Schedule “B” of the Collective Agreement.
[10] Next, the Union proposed a three-level grid system whereby all employees would progress through the grid based upon years of service whereby each two years of service from the start date entitled an employee to move up one step in the grid until they attained the level grid 3 job rate.
[11] The Applicant responded by agreeing to forgo making requests for RFP’s and/or contracting out the work of the Seasonal Recreational staff as it would otherwise be permitted to do pursuant to Article 28 of the Collective Agreement.
[12] The first two Union proposals were rejected however, in exchange for the employer not contracting out jobs, the parties signed a Memorandum of Understanding whereby the Union would accept a pay reduction for Schedule “E” employees thereby changing the single wage grid for Schedule “E” Recreation Staff to a three–grid system described as follows:
…All employees will progress through the grid based on years of service whereby each two years of employment from start date will entitle an employee to move up one step in the grid until they achieve the Level 3 jog rate. All employees employed on or before 31, December 2012 shall receive the Level 2 job rate. (para. 41, Agreed Statement of Facts, filed as Exhibit 2 before the Tribunal)
[13] Prior to the wage reduction on January 1, 2013, the Applicant was in compliance with the requirements of the Act.
[14] Effective January 1, 2013, consistent with the Memorandum of Understanding, all employees employed on or before December 31, 2012 (including the Personal Respondent) received the Level 2 job rate for the position of Facility Attendant.
[15] The pay reduction was accomplished by imposing a pay grid that provided that the hourly rate originally stipulated in the Collective Agreement would only be achieved after a prescribed period of service, with more junior employees receiving a lower wage. The Personal Respondent as well as Senior employees who would otherwise receive the maximum pay were moved down the salary grid such that they also received a pay reduction for two years from January 1, 2013 to December 31, 2014.
[16] Effective January 1, 2013, the Personal Respondent’s wage rate was reduced to $16.48 which constituted a reduction of $1.66 to her hourly wage rate.
[17] The Personal Respondent filed a complaint that the Applicant and Union violated sections 7(1) and 7(2) of the Act by agreeing to reduce her wages for a two-year period below the pay equity job rate that had previously been achieved.
[18] The pay reduction only applied to “Recreational Staff employees” who are covered under Schedule E of the Collective Agreement. The Personal Respondent’s job class of Facility Attendant, as well as the majority of Schedule E job classes, is primarily occupied by female employees.
[19] By Order dated April 27, 2015, Review Officer Alison Limerick found that the Applicant had violated subsections 7(1) and 7(2) the Act and that the Union violated subsection 7(2) of the Act. The Review Officer ordered that the Applicant pay the Personal Respondent’s wages owing and declined to order the Union to contribute.
[20] This matter came before the Tribunal by way of an application made by the Applicant pursuant to Section 24(6) of the Act, wherein the Applicant objected to the Review Officer’s Order, specifically the conclusion set out in paragraph 2 that “…the employer and union contravened Part 1 (Section 7(2) of the Act by agreeing to and reducing the Applicants [Moor’s] rate of compensation by $1.66 per hour from January 1, 2013 to December 31, 2014.”
The Standard of Review
[21] The parties agree that the standard of review is that of reasonableness.
[22] In the landmark case of Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47, the Supreme Court has described the reasonableness standard in the following manner:
- Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[23] In Dunsmuir the Supreme Court also held that the factual determinations of administrative tribunals attract the more deferential standard of reasonableness stating that “[d]eference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context. Adjudication in labour law remains a good example of the relevance of this approach.” (Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 68)
[24] The task of a reviewing court where the standard of review is reasonableness was described by Iacobucci J. as follows:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.” (Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 55-56)
[25] It is well recognized that the Pay Equity Hearings Tribunal is a highly specialized body with extensive experience in applying a complex statutory scheme. Its decisions are protected by a strong privative clause and it is afforded a high degree of deference given that its decisions are interpretations of its home statute. (Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) (1995), 1995 1488 (ON CA), 23 O.R. (3d) 43 (Ont. C.A.) at para. 46; Brant Haldimand-Norfolk Catholic District School Board v. O.S.S.T.F., 2011 ONSC 1232, [2011] O.J. No. 1399 (Ont. Div. Ct.) at para. 22; Windsor Star (The) v. C.E.P., Local 517-G, 2011 ONSC 2816, [2011] O.J. No. 2375 (Ont. Div. Ct.) at para. 6)
Issue One: Was the Panel’s interpretation of section 7(1) and 7(2) of the Act unreasonable?
[26] The central issue in this case is whether the Applicant and Respondent Union violated sections 7(1) and 7(2) of the Act when wages of employees in Schedule “E” job classes, including Moor and employees in her position of Facility Attendant, for whom pay equity had been achieved as of December 31, 2012, were reduced from January 1, 2013 to December 31, 2014.
[27] At paragraph 28 of its decision, the Panel clarified the issue as follows:
- … The issue in the instant case is not whether the actions of the Employer fall within a range of reasonable courses of action in the same way that an evaluation of job classes under section 5 could yield a range of reasonable results. The pointed issue in this case is whether reducing the wages of an employee who has achieved the pay equity job rate of her job class contravenes section 7 of the Act (absent an applicable exception under the Act). If doing so contravenes section 7, it cannot be considered reasonable in any circumstances.
[28] Section 7(1) and (2) of the Act provide as follows:
7 (1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.
(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of section (1).
[29] Section 7(1) requires an employer to both achieve and maintain pay equity. Where there is a Union, section 7(2) imposes a continuing statutory obligation on the employer and the Union to maintain pay equity and to refrain from bargaining for or agreeing to compensation that violates this obligation.
[30] It is the position of the Applicant that the Act was never created or intended to prohibit an employer from responding to precarious work issues or economic challenges, such as arose in this instance. The Applicant asserts that the agreement reached with the Union was bargained in good faith to achieve a temporary reduction in the wages of Schedule “E” employees for the purpose only of not contracting out the work and does not discriminate on the basis of gender or circumvent the stated purpose of the pay equity legislative scheme to prohibit gender pay discrimination. We disagree with this position.
[31] In considering this question, the Panel was obligated to interpret the Act in accordance with section 64 of the Legislation Act, 2006, S.O. 2006 c.21, Schedule F which provides:
64 (1) An Act shall be interpreted as being remedial and shall be given fair, large and liberal interpretation as best ensures the attainment of its objects.” (Legislation Act, 2006, S.O. 2006 c.21, Sch F)
[32] At paragraph 35 of its decision, the Panel acknowledged that the Act’s status as human rights legislation required a construction consistent with its purpose and accordingly gave it a broad interpretation guided by the plain meaning of the words used in the Act. (Caressant Care Nursing Home of Canada Ltd. V. London District Service Workers’ Union, Local 220, 2005 13791 (ON SCDC), [2005] O.J. No. 1560 (QL) (Div. Ct.).
[33] In its Decision, the Panel carefully analyzed the relevant provisions of the Act; reviewed its jurisprudence; considered the evidence and arguments presented by the parties and at paragraph 53 concluded that “the implementation of the wage grids which resulted in reducing Ms. Moor’s wage rate in the instant case constituted a violation of sections 7(1) and 7(2) of the Act.”
[34] The analysis of the Panel is thorough encompassing 10 pages and 28 paragraphs. (Tribunal Decision, paragraphs 28-55).
[35] With ‘respect to the meaning of the word “maintain” in section 7(1), at paragraph 39 of its Decision the Panel stated:
- Once achieved, section 7 requires that pay equity be maintained. The Employer points to the fact that the Act provides no direction on how pay equity is to be maintained pursuant to section 7 of the Act. While the Act does not define the term “maintain” the tribunal has interpreted the term on several occasions. There is no exhaustive definition however, the following considerations are instructive”.
The Panel then proceeded to adopt its discussion of what constituted “maintenance” set out in paragraph 25 of its decision in Call-A-Service Inc./Harmony Hall Centre for Seniors (No. 3), (2008) 88827 (ON PEHT) (April 28, 2004).
[36] The Panel concluded that the requirement to maintain pay equity means that:
- …absent an exception under the Act, the actual wages that employees in female job classes receive must either remain constant or must increase to avoid the re-emergence of a wage gap. There is nothing in the Act that contemplates an employee receiving a reduced wage (absent the application of an exception under the Act). The entire point of the Act is for individuals to continue to receive wage adjustments until such time as pay equity is achieved and for pay equity, once achieved, to be maintained thereafter.
43, The wage grid in the instant case was introduced after pay equity had been achieved…Given the Act’s purpose of redressing systemic gender discrimination in compensation for work performed by empolyees in female job classes, it is difficult to see how maintaining pay equity could be interpreted in a manner that allows an employer to do what has transpired in the instant case.
- After having achieved pay equity, for an employer to then introduce a wage grid which effectively reduces the wages that employees in a female job class receive is simply inconsistent with the underlying purpose and the entire scheme of the Act when analyzed as a whole. To so find would render meaningless the entire mechanism for providing pay equity under the Act.
[37] We find that the Decision of the Panel that the implementation of the wage grids that resulted in reducing the Personal Respondent’s wage rate violated sections 7(1) and 7(2) of the Act meets the definition of reasonableness set out above in Dunsmir. The Decision contains clear and cogent line of analysis set out that could reasonably lead the Tribunal from the evidence before it to the conclusion at which it arrived. This issue, and those that follow below, are interpretations of this expert tribunal’s home statute, and are deserving of substantial deference.
Issue Two: Was the Panel’s determination that section 8(2) of the Act did not apply in this circumstance unreasonable?
[38] Section 8(2) of the Act provides as follows:
(2) After pay equity has been achieved in an establishment, this Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of differences in bargaining strength.
[39] The Applicant argued that a plain reading and contextual reading of s. 8(2) indicates that it is intended to consider the relative bargaining strength of an employer and bargaining agent and that the Panel’s interpretation failed to adequately balance pay equity interests against labour relations interests.
[40] Both the Respondent Union and the Personal Respondent submitted that a plain reading of s. 8(2) and prior jurisprudence supported the position that the differences in bargaining strength exception only applies when the job classes are in different bargaining units. Otherwise, pay equity could be avoided entirely by pointing to differences in the relative bargaining strength of an employer and the union bargaining with it.
[41] The Respondent Union argued that s. 8(2) does not apply to bargaining inequalities within a bargaining unit, nor does it contemplate the relative bargaining power between employer and union. Rather, the Union’s position was that the intent of s. 8(2) is to address bargaining power between unions.
[42] The Panel addressed these arguments in paragraphs 56-58 of its reasons and rejected the argument that the wage reduction imposed on Moor was justified pursuant to s. 8(2) of the Act.
[43] The Panel found that the bargaining strength exception set out in s. 8(2) of the Act applies only in limited circumstances where pay equity had been achieved and stated at paragraphs 57 and 58:
… subsection 8(2) is not concerned with a bargaining imbalance as between the employer and the bargaining agent of the female job classes in question. Subsection 8(2) contemplates a difference in compensation between a female and male job class after pay equity has been achieved. It then mentions an exception whereby differences can occur if there is a difference that is “the result of differences in bargaining strength.” A plain reading of that subsection leads to the conclusion that the difference in bargaining strength is in reference to male job class versus female job class since they are two groups that have experienced a difference in compensation. (Stevenson Memorial Hospital, 2000 22419 (ON PEHT) (February 24, 2000).
It is trite that when interpreting anti-discrimination statutes, exceptions must be construed narrowly. Therefore, if the Legislature meant for differences in bargaining strength to include differences between female job class’ bargaining agent and the employer, clear language would have been necessary. Since no such clear language exists, we find that the exception set out at subsection 8(2) does not apply in this case.
[44] We find that the decision of the Panel that the exception set out in s. 8(2) is not applicable is reasonable.
Issue 3: Was the Panel’s determination that the employer could not reduce the Personal Respondent’s wages unreasonable, in particular in light of s. 9(1) of the Act?
[45] Section 9(1) of the Act provides as follows:
9 (1) An employer shall not reduce the compensation payable to any employee or reduce the rate of compensation for any position in order to achieve pay equity.
[46] The Applicant relies on s. 9(1) of the Act in support of its argument that it was entitled to reduce the pay rate for the Personal Respondent, and others in her job class, because the reduction was not imposed “to achieve pay equity”.
[47] The Panel found that s. 9(1) is not an exception to s. 7 of the Act, and cannot be read as overriding the requirement in s. 7(1) to maintain pay equity. Section 9(1) of the Act prohibits an employer from achieving pay equity by reducing the compensation payable to any employee or position.
[48] A plain reading of s. 9(1) of the Act supports the decision of the Panel that the Applicant could apply the provision to reduce the Personal Respondent’s wages.
[49] We find that the Panel’s interpretation of s. 9(1) as a limitation on how the requirement to achieve pay equity mandated by s. 7 can be achieved is reasonable.
Issue 4: Was the Panel’s decision not to order the Respondent Union to contribute to the Personal Respondent’s compensation a reasonable interpretation of s. 25(2)(e) of the Act
[50] Section 25(2)(e) of the Act reads:
(2) The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,
(e) may, for the female job class that is the subject of the complaint or reference, order adjustments in compensation in order to achieve pay equity, where the Hearings Tribunal finds that there has been a contravention of section 7 (1)
[51] The Applicant argued that failing to require the Respondent Union to contribute to the award in favour of the Personal Respondent reflects a misunderstanding of the Tribunal’s authority under s. 25(2)(e) and allows a Union to ignore the Act with impunity.
[52] The position of the Personal Respondent is that, as a general proposition, there is no jurisdiction to order a union to pay equity wage adjustments. The Personal Respondent submitted that the Union should not be responsible for paying any of the amounts that may be found owing to her relying on the dissenting opinion in Welland County General Hospital v. Service Employees International Union, Local 204, [1994] OPED No. 36.
[53] The Respondent Union argued that s. 25(2)(e) of the Act does not provide any statutory authority to order the union to contribute to employee wages. Such an order would be illogical given that the union receives its revenue from union wages.
[54] While there is authority in the Act for a Tribunal to order a union who has contravened the legislation to compensate a person discriminated against, the Panel found that there are no such provisions in s. 25(2)(e) of the Act.
[55] In paragraph 65 of the Decision the Panel stated:
- … Throughout the Act, it is clear that employers alone are responsible for making pay equity adjustments. Therefore, without express language to that effect, paragraph 25(2)(e) of the Act cannot reasonably be interpreted as granting the Tribunal authority to order a union to contribute to the payment of adjustments in compensation. As was discussed in Welland, supra, (Welland Country General Hospital v. Service Employees International Union, Local 204, [1994] O.P.E.D. No. 36 (QL) (February 23, 1994) we are also persuaded by the absurdity of requiring a union, which is funded by union dues, to pay wage adjustments. This would mean that the employers in question would be, in effect, paying for their own wage adjustments. Clear language is required in order to produce such a result.
[56] The Panel endorsed the decision of the majority in Welland set out at paragraph 57:
- Even had we found that the Union was in breach of s. 7(2) in agreeing to the percentage increase and in seeking the trades adjustment, at most we would have issued a declaration to that effect. We would not have ordered the Union to pay and of the cost of redressing the gap widening. Those are payments that must continue over time. They are indistinguishable from wages and it is in our view inconceivable that a Union should be subject to an ongoing commitment to pay wages. Because a union’s only source of funding is membership dues, such an award would be tantamount to requiring employees, through those dues, to pay their own wages.
[57] We find that the Panel’s decision that, absent an express clear statutory provision, there is no jurisdiction to order a union to pay equity wage adjustments is reasonable.
Conclusions and Disposition
[58] For the reasons set out above, the application is dismissed.
Costs
[59] In accordance with the agreement reached by counsel, costs are fixed and payable forthwith by the Applicant in the amount of $5,000 to the Personal Respondent, in the sum of $4,000 to the Respondent C.U.P.E. Local 543. No costs were requested by the Intervenor, the Pay Equity Hearings Tribunal and none are ordered.
___________________________ P. SMITH J.
I agree
THORBURN J.
I agree
MATHESON J.
Date of Release: April 25, 2018
CITATION: Corporation of the City of Windsor v. Moor, 2018 ONSC 2055
DIVISIONAL COURT FILE NO.: 341/17
DATE: 20180425
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
P. SMITH, THORBURN and MATHESON JJ.
BETWEEN:
CORPORATION OF THE CITY OF WINDSOR
Applicant
– and –
SHIRLEY D. MOOR AND CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 543
Defendant/Respondent
REASONS FOR JUDGMENT
P. SMITH J.
Date of Reasons for Judgment: April 25, 2018