Ontario Nurses' Association v. Participating Nursing Homes

[Indexed as: Ontario Nurses' Assn. v. Participating Nursing Homes]

Ontario Reports Court of Appeal for Ontario Strathy C.J.O., Benotto, Brown, Huscroft and Zarnett JJ.A. March 9, 2021 154 O.R. (3d) 225 | 2021 ONCA 148

Case Summary

Administrative law — Judicial review — Standard of review — Reasonableness — Employers and unions establishing pay equity under statutory proxy method using male job classes as comparators — Unions asserting that pay equity had not been maintained under proxy method, and bringing applications to Pay Equity Hearings Tribunal — Tribunal ruling that proxy method did not have to be used to maintain pay equity and that interpretation of applicable legislation did not require consideration of Charter equality values — Divisional Court finding Tribunal's decision unreasonable — Employers' appeal from Divisional Court dismissed — Unreasonable to interpret legislation as eliminating male comparator to maintain pay equity — Canadian Charter of Rights and Freedoms, s. 15 — Pay Equity Act, R.S.O. 1990, c. P.7.

Charter of Rights and Freedoms — Equality rights — Pay equity — Employers and unions establishing pay equity under statutory proxy method using male job classes as comparators — Unions asserting that pay equity had not been maintained under proxy method, and bringing applications to Pay Equity Hearings Tribunal — Tribunal ruling that proxy method did not have to be used to maintain pay equity and that interpretation of applicable legislation did not require consideration of Charter equality values — Divisional Court finding Tribunal's decision unreasonable — Employers' appeal from Divisional Court dismissed — Unreasonable to interpret legislation as eliminating male comparator to maintain pay equity — Unnecessary to determine whether Tribunal erred in failing to account for Charter values — Canadian Charter of Rights and Freedoms, s. 15 — Pay Equity Act, R.S.O. 1990, c. P.7.

Employment — Labour relations — Pay equity — Employers and unions establishing pay equity under statutory proxy method using male job classes as comparators — Unions asserting that pay equity had not been maintained under proxy method, and bringing applications to Pay Equity Hearings Tribunal — Tribunal ruling that proxy method did not have to be used to maintain pay equity and that interpretation of applicable legislation did not require consideration of Charter equality values — Divisional Court finding Tribunal's decision unreasonable — Employers' appeal from Divisional Court dismissed — Unreasonable to interpret legislation as eliminating male comparator to maintain pay equity — Canadian Charter of Rights and Freedoms, s. 15 — Pay Equity Act, R.S.O. 1990, c. P.7.

Statutes — Interpretation — Employers and unions establishing pay equity under statutory proxy method using male job classes as comparators — Unions asserting that pay equity had not been maintained under proxy method, and bringing applications to Pay Equity Hearings Tribunal — Tribunal ruling that proxy method did not have to be used to maintain pay equity and that interpretation of applicable legislation did require consideration of Charter equality values — Divisional Court finding Tribunal's decision unreasonable — Employers' appeal from Divisional Court dismissed — Unreasonable to interpret legislation as eliminating male comparator to maintain pay equity — Canadian Charter of Rights and Freedoms, s. 15 — Pay Equity Act, R.S.O. 1990, c. P.7.

The appellants were a group of employers operating nursing homes and were subject to the Pay Equity Act. The purpose of that Act was to redress systemic gender discrimination in compensation experienced by those in female job classes. The Act required employers to establish and maintain compensation practices that provided for pay equity in every establishment of the employer. Three different methods of comparison were used in establishing pay equity, with each involving a comparison between male and female job classes. The nursing homes in question were predominantly female workplaces, with no male job classes available for direct comparison. Accordingly, the Act provided a proxy method whereby a female job class, from an establishment where pay equity had already been achieved using a male comparator, was deemed to be the male job class. The respondents were two unions representing nurses, support workers and various aides. In 2005, following extensive negotiations, the parties reached an agreement establishing pay equity for all female job classes with the appellants, using municipal homes for the aged as the proxy employer. The respondents subsequently observed changes in the appellants' workplaces suggesting that the value of the work had increased and that wage gaps between the appellants' employees and employees of the proxy had re-emerged. The respondents applied to the Pay Equity Hearings Tribunal, arguing that because pay equity had been established by the proxy method, it had to be maintained using that same method. The respondents further submitted that values informing equality rights under s. 15 of the Canadian Charter of Rights and Freedoms had to be considered as an aid to interpret the Act. The Tribunal agreed that the Act imposed an obligation on the appellants to maintain pay-equity-compliant compensation practices, but rejected the submission that the proxy method should be used to fulfill that obligation. The Tribunal also addressed and rejected the respondents' s. 15 Charter arguments. On appeal, the Divisional Court concluded that the Tribunal's decision was unreasonable. The court determined that while the Act did not contravene s. 15 of the Charter, the Tribunal erred in failing to consider Charter values when interpreting the Act. The court conducted its own Charter values analysis and held that the Tribunal's decision limited s. 15 by denying women in predominantly female workplaces the right to maintain pay equity with reference to male work. The court also held that the Tribunal failed to balance the severity of the interference with s. 15 with the statutory objectives of the Act. The court declined to send the matter back to the Tribunal for reconsideration, instead remitting the matter to the Tribunal to specify the procedures for maintaining pay equity using the proxy method. The appellants appealed the decision of the Divisional Court.

Held, the appeal should be dismissed.

Per Benotto J.A. (Brown and Zarnett JJ.A. concurring): The Divisional Court was correct in concluding that the Tribunal's decision was unreasonable. The Tribunal held that it was possible to maintain pay equity without continuing to resort to the compensation practices in the proxy establishment. That interpretation ignored the purpose, scheme and plain wording of the Act. The scheme of the Act was built on the fundamental premise that in order to redress systemic gender discrimination in compensation, there had to be a comparison between male and female job classes. The Act indicated that comparison to male job classes was the way to identify systemic discrimination. Section 21.13 provided that in establishments using the proxy method, systemic discrimination was identified by comparing a female job class in the seeking establishment with a proxy female class, i.e., a deemed male competitor. Identifying gender discrimination was a key element of the establishment and maintenance of pay equity, and had the Tribunal relied on s. 21.13, it may well have arrived at a different result. Beyond the requirement for comparison at the identification stage, pay equity was achieved when the required comparison was done and any necessary adjustments made. The proxy method was added to the Act specifically to provide for deemed male comparators for establishments where no male job classes existed. All three comparison methods in the Act involved a direct or indirect comparison between female and male job classes. It was unreasonable to interpret the Act as doing away with an ongoing deemed male comparator in respect of an employer's duty to maintain pay equity in female-dominated establishments using the proxy method to establish pay equity. No such distinction was made in the Act, nor was it consistent with the purpose of the Act. Women in establishments without male comparators were most at risk of being affected by discrimination, and the Tribunal's maintenance method failed to provide a means to redress systemic discrimination on an ongoing basis for those most vulnerable women. The overriding principle or purpose of the Act was not internal comparison but rather redressing systemic discrimination in compensation for work performed by employees in female job classes. While the Tribunal's reasons were transparent and intelligible, there was nothing in the Act to justify eliminating a male comparator for maintaining pay equity in establishments where the proxy method was used to establish it. It was unnecessary to determine whether the Tribunal erred in failing to take into account Charter values in interpreting the Act. The Divisional Court properly remitted the matter to the Tribunal to specify what procedures should be used to ensure that those employees who established pay equity through the proxy method would continue to have access to male comparators to maintain pay equity.

Per Huscroft J.A. (Strathy C.J.O. concurring) (dissenting): The Act set out several methods for establishing pay equity, but said nothing about how pay equity was to be maintained once it had been achieved. The Tribunal, after noting the absence of a definition of "maintenance" in the Act, reviewed all of the provisions and regulations in which the term appeared and found that none of them provided any indication of how pay equity was to be maintained. Thus, the Tribunal stated that the scope of the obligation to maintain pay equity had to be ascertained from a consideration of the Act as a whole. The Tribunal's decision was thorough and cogent and made sense of an extremely complicated legislative scheme. The decision reflected the Tribunal's considerable expertise, and was entitled to deference. There was no basis to conclude that it was unreasonable. The Divisional Court erred in concluding that the Tribunal was required to consider Charter values in interpreting the relevant provisions of the Act, as such values were relevant only to the interpretation of legislation that was genuinely ambiguous.

Cited Cases

Statutes Referred To

Canadian Charter of Rights and Freedoms , ss. 1, 15
Pay Equity Act, R.S.O. 1990, c. P.7 [as am.], Preamble, Part I [as am.], ss. 1 [as am.], (1) [as am.], 1.1, 2, 3, 4, (1), (2), 5, (1), 5.1 [as am.], (1), 6 [as am.], 7, (1), 7.1, 8 [as am.], 9, Part III.2 [rep.] ss. 21.13 [rep.], 21.15(2)(a) [rep.], (2)(b) [rep.], 21.17(1) [rep.]

Authorities Referred To

Ministry of Labour, "Discussion Paper on Pay Equity: Implementing Proxy Comparisons" (1992)
Mullan, David, "Reasonableness Review Post- Vavilov : An 'Encomium for Correctness', or Deference as Usual?" (Paper delivered at the What Difference will Vavilov Make? Views from Workplace Law and Beyond Webinar, October 16, 2020)
Pay Equity Commission, A Guide to Interpreting Ontario's Pay Equity Act
Sullivan, Ruth, Sullivan on the Construction of Statutes , 6th ed. (Markham, Ont.: LexisNexis, 2014)

On APPEAL from the judgment of the Divisional Court (Regional Senior Judge Geoffrey B. Morawetz and Justices Robbie Gordon and Nancy L. Backhouse), dated April 30, 2019, with reasons reported at [2019] O.J. No. 2237 , 2019 ONSC 2168 , reversing in part a decision of the Pay Equity Hearings Tribunal, dated January 21, 2016, with reasons reported at [2016] O.P.E.D. No. 5.

Counsel: David M. Golden and Marco P. Falco, for appellants/respondents by way of cross-appeal, Participating Nursing Homes. S. Zachary Green, Emily Bala and Carolyn L. Kay, for appellant/respondent by way of cross-appeal, Attorney General of Ontario. Paul J.J. Cavalluzzo, Adrienne Telford and Lara Koerner Yeo, for respondent/appellant by way of cross-appeal, Service Employees International Union, Local 1. Janet Borowy, Danielle Bisnar and Andrea Sobko, for respondent/appellant by way of cross-appeal, Ontario Nurses' Association. Lindsay Lawrence and Aaron Hart, for respondent, Pay Equity Hearings Tribunal. Fay Faraday, for intervenor, Equal Pay Coalition.

BENOTTO J.A. (BROWN and ZARNETT JJ.A. concurring):

Overview

[1] The purpose of the Pay Equity Act, R.S.O. 1990, c. P.7 (the "Act"), is to redress systemic gender discrimination in compensation experienced by those in female job classes. To that end, the Act requires employers who are subject to the Act to "establish and maintain compensation practices that provide for pay equity in every establishment of the employer" (emphasis added): Act, s. 7(1).

[2] In establishing pay equity, three different methods of comparison are used. Each involves a comparison between male and female job classes.

[3] In predominantly female workplaces, like the nursing homes in question, there are no male job classes with which female job classes can be directly compared. For women in these workplaces, the Act provides a "proxy" method whereby a female job class, from an establishment where pay equity has already been achieved using a male comparator, is deemed to be the male job class.

[4] The parties in this case dispute whether the proxy method is to be used in ensuring that pay equity is maintained. The appellants, the Participating Nursing Homes ("PNH") and the Attorney General of Ontario ("AGO"), submit that the proxy method is only to be used to establish pay equity, not to maintain it. The respondents, the Ontario Nurses' Association ("ONA") and the Service Employees International Union, Local 1 ("SEIU"), disagree. They submit that the proxy method must also be used to maintain pay equity, because otherwise there would be no ongoing male comparator, which is essential to identify and redress systemic discrimination in compensation. In their cross-appeal, they submit that if the Act is not interpreted as requiring the proxy method to be used in maintaining pay equity, then the Act contravenes s. 15 of the Canadian Charter of Rights and Freedoms.

[5] The matter came before the Pay Equity Hearings Tribunal (the "Tribunal") following applications by the ONA and the SEIU. The Tribunal did not agree that the proxy method was to be used to maintain pay equity and set out a formula for maintaining pay equity that did not include the proxy method.

[6] The Divisional Court concluded that the Tribunal's decision was unreasonable. It held that a proper interpretation of the Act requires ongoing access to male comparators -- as set out in the proxy method -- to maintain pay equity. The Divisional Court remitted the matter to the Tribunal to specify what procedures should be used to ensure continued access to male comparators.

[7] For the reasons that follow, I conclude that the Tribunal's decision is unreasonable, as the text, context, scheme and purpose of the Act make it clear that ongoing access to male comparators through the proxy method is required to maintain pay equity. I would dismiss the appeals and the cross-appeal.

Background

The parties

[8] The PNH are a group of employers that operate up to 143 for-profit nursing homes in Ontario.

[9] The ONA is the bargaining agent for approximately 2,100 registered nurses and allied health professionals working at nursing homes across the province. The SEIU is the bargaining agent for registered practical nurses, personal support workers, health care aides and dietary, housekeeping and recreational aides working at the PNH. The SEIU and the ONA are referred to collectively as the Unions.

[10] The AGO was added as an intervenor by the Tribunal and also appeals.

[11] The Tribunal and the Equal Pay Coalition were added as intervenors by the Divisional Court and have made submissions before this court as well.

Ontario's pay equity legislation

[12] The purpose of the Pay Equity Act is clear. The preamble provides that "it is desirable that affirmative action be taken to redress gender discrimination in the compensation of employees employed in female job classes in Ontario". The body of the Act further confirms:

4(1) The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.

[13] Section 1(1) of the Act specifies when a job class is a "female job class" and when it is a "male job class". Generally speaking, a female job class is a job class in which 60 per cent or more of the members are female. Section 1(1) of the Act defines the term "job class" to mean "those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates".

[14] The Act imposes an obligation to both establish and maintain pay-equity-compliant compensation practices:

7(1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

[15] As explained in more detail below, systemic discrimination is identified by undertaking a comparison between female job classes and male, or deemed male, job classes in terms of compensation and the value of work performed: Act, ss. 4(2), 21.13. The criterion applied in determining the value of work is "a composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed": Act, s. 5(1).

[16] The Act prescribes three methods for achieving pay equity: the job-to-job, proportional value and proxy methods.

[17] The job-to-job and proportional value methods involve comparing the value/compensation relationship of female job classes to the value/compensation relationship of male job classes within the employer's establishment. An "establishment" means all of the employees of an employer employed in a geographic division or divisions.

[18] The Act provides the proxy method for achieving pay equity in establishments without any male job classes. The proxy method is complex, but at its core, it involves comparing a female job class in the seeking employer's establishment (in this case, the PNH) to a female job class at a proxy employer's establishment (in this case, Municipal Homes for the Aged ("Municipal Homes")).

[19] A proxy female job class is used because it has already achieved pay equity by way of comparison to a male job class within the proxy employer's establishment. The value/ compensation relationship of the proxy female job class is compared to the value/compensation relationship of the female job class at the seeking employer's establishment with a view to determining the adjustments necessary to achieve pay equity for the seeking employer's employees. In short, the proxy female class functions as the "deemed" male comparator.

[20] To achieve pay equity for all female job classes within the seeking establishment, the female job class that was compared to the proxy female job class becomes the "key female job class". All other female job classes in the seeking establishment are then evaluated to ensure that the value/ compensation relationship for their jobs is equal to that of the key female job class.

The parties disagree on how to maintain pay equity

[21] Employment in the nursing home sector is almost exclusively female. As a result, there are no male job classes available for purposes of comparison at the PNH, and they were required to use the proxy method in establishing pay-equity-compliant compensation practices for their employees. Municipal Homes were identified as a suitable proxy employer. They are similarly female dominated, but because they are operated by municipalities, there are male job classes available for comparison.

[22] In 1994, the PNH took steps to establish pay-equity-compliant compensation practices for female employees using the proxy method. Following extensive negotiations, the Unions and the PNH reached an agreement. In accordance with the agreement, pay equity was established for all female job classes at the PNH by 2005, following adjustments to increase compensation for all the female job classes.

[23] The Unions take the position that the PNH have failed to maintain pay-equity-compliant compensation practices since 2005. Over time, the Unions have observed several changes in PNH workplaces that suggest the value of the work performed by employees is increasing: a new legislative framework; new education requirements for employees; increasing acuity of nursing home residents; and more medical services required to meet the rising needs of residents. Employees at the Municipal Homes would have experienced the same workplace changes, increasing the value of their work. The Unions have also observed that wage gaps have re-emerged between PNH employees and employees at the Municipal Homes doing comparable work. Accordingly, it appeared to the Unions that the compensation of employees at the Municipal Homes had increased because of the ongoing access to male comparators. This prompted the ONA and the SEIU to bring applications to the Tribunal.

[24] The Unions submit that since the PNH established pay equity using the proxy method, the Act requires that it be maintained using that same method because a lack of an ongoing connection to a male comparator will allow pay disparity to re-emerge.

[25] The position of the PNH and the AGO is that the Tribunal's maintenance method, which requires only a one-time comparison with a female job class in a proxy establishment (i.e., a deemed male comparator), is reasonable. The Tribunal's decision is detailed below.

Charter values and s. 15 Charter rights

[26] The Unions have asserted throughout that the Tribunal and the courts must consider Charter values as an aid to interpret the Act -- an argument that was accepted by the Divisional Court. They rely, in part, on this court's decision in Taylor-Baptiste v. Ontario Public Service Employees Union (2015), 126 O.R. (3d) 481, 2015 ONCA 495, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 412. In Taylor-Baptiste, the court had the following to say about Charter values in the administrative law context, at paras. 54-57:

Their first submission is that an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its home or enabling statute at issue in a case. . . .

Binding authority prevents the acceptance of the appellants' submission. Slightly more than a decade after deciding Bell ExpressVu, the Supreme Court rejected an argument similar to the appellants' when, in R. v. Clarke, it stated, at para. 16:

Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers "must act consistently with the values underlying the grant of discretion, including Charter values" (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.

The appellants' second submission is that the Charter values interpretive principle articulated in Doré only applies to instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy. They say it does not apply to the kind of adjudicative decision made by the Tribunal in this case -- i.e. whether the respondents' conduct violated s. 5(1) of the Code.

While I take the appellants' point that in both Doré and Loyola High School the Supreme Court frequently referred to the exercise of a discretionary power under a home statute, in my view the decision in Doré, when read as a whole, prevents the acceptance of the appellants' submission. First, in Doré the Court stated that "administrative decisions are always required to consider fundamental values" (emphasis in original). Second, the context which framed the court's discussion in Doré was analogous to the present case -- i.e. the determination by an administrative tribunal about whether a person's conduct had violated the strictures of a statutory or regulatory rule.

(Footnotes omitted)

[27] The Unions further submit on their cross-appeal that, if the Act does not require maintenance using the proxy method, the Act contravenes s. 15 of the Charter.

[28] The PNH and the AGO submit that the Tribunal was not required to consider Charter values because, unlike in Taylor-Baptiste, there was no ambiguity in the statute. They further submit that if Taylor-Baptiste stands for the proposition that administrative actors must always consider Charter values when interpreting statutes, even in the absence of ambiguity, then Taylor-Baptiste was wrongly decided because it is inconsistent with Supreme Court authorities.

Tribunal decision

[29] The Tribunal dismissed the ONA's and the SEIU's applications.

[30] The Tribunal agreed that the Act imposed an obligation on the PNH to maintain pay-equity-compliant compensation practices, but rejected the submission that the proxy method should be used to fulfill that obligation.

[31] The Tribunal found that the proxy method was "extraordinary", and it viewed an ongoing requirement to obtain information from the proxy employer as "a substantial practical impediment". The Tribunal concluded that the Act did not require the use of the proxy method for maintenance and added [at para. 117]: "[t]he Act's focus is on the specific compensation practices that determine what an employer pays its own female job classes in a given establishment". The Tribunal stated [at para. 133]:

In summary, the Act's obligation to maintain pay equity applies regardless of the methodology of comparison used. Pay equity that is achieved under a proxy plan must be maintained. Generally speaking, maintenance requires the on-going monitoring of any changes in either the compensation or the value (the amalgam of skill, effort, responsibilities and working conditions) of female job classes and the male job classes (including deemed male job classes) used for comparison purposes. In the case of proxy plans, however, maintenance does not require the monitoring of changes to the value or compensation of the female job classes in the proxy establishment. To so require would be inconsistent with the over-riding principle that the Act mandates each individual employer to whom it applies to ensure that its own compensation practices are free from gender discrimination. Instead, what is required is monitoring of the compensation and value relationship of the non-key female job classes and the key female job class as compared to the compensation/value relationship (PV line) that has already been determined to provide for pay equity.

[32] The Tribunal addressed and rejected the Unions' s. 15 Charter arguments.

Divisional Court decision

[33] The Divisional Court concluded that the Tribunal's decision was unreasonable. The court determined that while the Act does not contravene s. 15 of the Charter, the Tribunal erred in failing to consider Charter values when interpreting the Act.

[34] The Divisional Court relied on Taylor-Baptiste to reject the Tribunal's position that statutory ambiguity was required before Charter values could be employed to interpret the Act. The Divisional Court considered it [at para. 67] "settled law that administrative decision makers must balance the Charter values at play with the statutory objectives of the legislation in question".

[35] The Divisional Court proceeded to conduct its own Charter values analysis. Applying the framework from Doré v. Barreau du Québec, [2012] S.C.R. 395, 2012 SCC 12, the Divisional Court held that the Tribunal's decision limited s. 15 of the Charter, because it denied [at para. 70] "women in predominantly female workplaces (compared to women who have male comparators within their establishments) the right to maintain pay equity with reference to male work". It noted that "[t]he fundamental precept of pay equity is that there should be equal pay for work of equal value between women and men" and that "[t]he touchstone of a pay equity analysis is the comparison to male work, as men enjoy the benefit of compensation tied to the value of their work as opposed to their gender".

[36] Further, it held that the Tribunal failed to balance the severity of the interference with s. 15 with the statutory objectives of the Act. The objectives of the Act include [at para. 75] "to ensure such discrimination [in compensation] does not re-emerge". The Tribunal failed to consider the discriminatory effects of its interpretation on women in female-dominated workplaces. The Tribunal's interpretation denied these women the right to correct any pay gap that has re-emerged since 1994. Maintaining pay equity [at para. 79] "by internal comparison of female job classes does nothing to ensure that the key female job class wage to which the other female classes are compared reflects any re-emergence of a pay equity gap since 1994".

[37] The court declined to send the matter back to the Tribunal for reconsideration given its conclusion that [at para. 90] "the only proportionate balancing of the Charter right of equality with the statutory mandate of the Act, properly construed, requires the maintenance of pay equity in predominantly female workplaces through the proxy method of comparison". The matter was remitted to the Tribunal to specify the procedures for maintaining pay equity using the proxy method.

[38] The Divisional Court's conclusion that the Act did not contravene s. 15 of the Charter was tied to its conclusion about the proper interpretation of the Act [at para. 64]:

We have considered whether the Act is discriminatory on its face because there is no mechanism spelled out in the Act for maintaining pay equity by reference to male work for women in predominantly female workplaces reliant on the proxy method. However, we have concluded that there is an interpretation of the Act that would render it non-discriminatory-namely, that the employer must maintain a compensation practice that involves ongoing comparison of the key female job class to a proxy female job class. Accordingly, we find that the Act does not contravene the Charter.

(Emphasis added)

Analysis

[39] The question for this court is whether the Divisional Court was correct in concluding that the Tribunal's decision was unreasonable. As I will explain, I agree with the conclusion that the Tribunal's decision was unreasonable, although I reach that conclusion without relying on Charter values. As my answer to the question is "yes", I need not deal with the s. 15 issue raised on the cross-appeal.

Guiding principles

[40] The focus of this court's inquiry is the reasonableness of the Tribunal's decision. This involves "stepping into the shoes" of the lower court and focusing on the Tribunal's decision: Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, 2013 SCC 36, at paras. 45-46.

[41] An inquiry into the reasonableness of an administrative tribunal's decision begins with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[42] Post- Vavilov, there is a single standard of reasonableness. At para. 89:

[R]easonableness remains a single standard, and elements of a decision's context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that "[r]easonableness is a single standard that takes its colour from the context."

(Citations omitted)

[43] A tribunal's governing statute is an important part of considering whether the tribunal's decision was reasonable [at para. 101] "in light of the relevant factual and legal constraints that bear on it". Vavilov, at para. 108:

Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures.

[44] Vavilov reaffirms the "modern principle" of statutory interpretation, which requires that "the words of a statute must be read 'in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament'": Vavilov, at para. 117.

[45] The administrative decision must be consistent with principles of statutory interpretation and be compliant with the "rationale and purview of the statutory scheme under which it is adopted": Vavilov, at paras. 108, 118. As set out in Vavilov, at para. 121:

The administrative decision maker's task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue.

(Emphasis added)

[46] Vavilov cautions that a reviewing court is not interpreting the statute de novo. Rather, the focus should be on the reasonableness of the administrative decision. In other words, the focus of the analysis is on why the Tribunal's decision is unreasonable, not what this court would have decided in the Tribunal's place. This is explained at paras. 115-116:

Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.

Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or "ask itself what the correct decision would have been": Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached.

(Emphasis added)

[47] With these principles in mind, I turn now to explain why the Tribunal's interpretation of the Act is unreasonable.

The Tribunal's maintenance method

[48] The Tribunal held that [at para. 120] "[i]t is possible to maintain pay equity without continuing resort to the compensation practices in the proxy establishment". It explained in some detail how it thought that could be achieved [at paras. 125, 126 and 128]:

The initial comparison and adjustment of the value/ compensation ratio of the key female job classes to match the value/compensation ratio of the proxy female job classes is capable of being expressed as a mathematical formula or equation. The equation may describe a gender neutral wage line capable of being plotted on a matrix where the increasing value of a job results in movement along the X axis, and where the increasing compensation rate of a job results in movement along the Y axis. The complexity of the equation will depend on the extent to which the slope of the wage line is other than constant. If it is constant, the relationship and the equation may be very simply expressed as one of $/point of value.

Regardless of how the compensation/value equation is expressed, either of its variables may change over time, with the consequence that the other must also change if the same result is to be maintained.

Subsequent to January 1, 1994, the two potential triggers engaging the obligation to maintain are: a change in the compensation of the key female job class; or a change in the value of any of the job classes in the seeking employer's establishment. Whenever the hourly rate for the key female job class increases without any increase in its value occurring, the $/point ratio will increase. Pay equity for the other female job classes will be maintained only if that new ratio also obtains for them, and their value has not changed. If the job duties and responsibilities of the key female job class change such that its point value increases, then its rate of compensation must also increase to maintain whatever $/point ratio is applicable at the time. The same is true for the other female job classes.

[49] Thus, the Tribunal's approach to maintenance is limited to an internal comparison between the key female job class and the non-key female job classes. In the Tribunal's view [at para. 133], "maintenance does not require the monitoring of changes to the value or compensation of the female job classes in the proxy establishment". In other words, no ongoing comparison is made with the deemed male job classes in the proxy workplace.

[50] In my view, the Tribunal's interpretation -- which deprives women in establishments without male job classes access to an ongoing deemed male comparator -- is unreasonable as it ignores the purpose, scheme and plain wording of the Act.

The Act requires female to male comparison

[51] The scheme of the Act is built on the fundamental premise that in order to redress systemic gender discrimination in compensation, there must be a comparison between male and female job classes.

[52] As set out above, the preamble to the Act and s. 4(1) confirm that the purpose of the Act is to redress systemic gender discrimination in compensation for employees in female job classes.

[53] The Act itself indicates that comparison to male job classes is the way to identify systemic discrimination. Section 21.13 provides that, in establishments that use the proxy method, systemic discrimination is identified by comparing a female job class in the seeking establishment with a proxy female class (i.e., deemed male comparator):

Systemic gender discrimination

21.13 For the purposes of this Part and despite subsection 4(2), systemic gender discrimination in compensation shall be identified by undertaking comparisons, in terms of compensation and in terms of the value of the work performed, using the proxy method of comparison,

(a) between each key female job class in the seeking employer's establishment and female job classes in a proxy establishment; and

(b) between the female job classes in the seeking employer's establishment that are not key female job classes and the key female job classes in that establishment.

[54] Identifying gender discrimination is a key element of the establishment and maintenance of pay equity. Yet, the Tribunal did not consider this section of the Act which applies to establishments that use the proxy method.

[55] The Tribunal's failure to address s. 21.13 leads me to a loss of confidence in the outcome reached. Vavilov addresses this at para. 122:

If, however, it is clear that the administrative decision maker may well, had it considered a key element of a statutory provision's text, context or purpose, have arrived at a different result, its failure to consider that element would be indefensible, and unreasonable in the circumstances. Like other aspects of reasonableness review, omissions are not stand-alone grounds for judicial intervention: the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker.

[56] The job-to-job and proportional value methods presume that there will be male job classes in the establishment that can be compared to female job classes. These methods are thus not suitable for female-dominated workplaces where there are no male job classes. Had the Tribunal relied on s. 21.13 -- which provides that comparison with the proxy job classes is the way to identify systemic discrimination in establishments using the proxy method -- it may well have arrived at a different result.

[57] Beyond the requirement for comparison at the identification stage, pay equity is achieved when the required comparison is done, and any necessary adjustments are made:

Achievement of pay equity

5.1(1) For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison or the proportional value method of comparison and any adjustment to the job rate of each female job class that is indicated by the comparison has been made.

(Emphasis added)

[58] The proxy method was added to the Act specifically to provide for deemed male comparators for establishments where no male job classes exist. Part III.2 of the Act sets out how the comparison between the seeking employer and the proxy employer works and how the value/compensation relationship for the key female job class in the seeking employer's establishment permits pay equity to be achieved for the rest of the female job classes in that establishment:

Proxy method required

21.14(1) A seeking employer shall use the proxy method of comparison for all female job classes in an establishment.

Proxy method described

21.15(1) Pay equity is achieved for a female job class in an establishment of a seeking employer under the proxy method of comparison,

(a) in the case of a key female job class,

(i) when the class is compared with those female job classes in a proxy establishment whose duties and responsibilities are similar to those of the key female job class, and

(ii) when the job rate for the class bears the same relationship to the value of the work performed in the class as the pay equity job rates for the female job classes in the proxy establishment bear to the value of the work performed in those classes; and

(b) in the case of any other female job class,

(i) when the class has been compared with the key female job classes in the establishment of the seeking employer, and

(ii) when the job rate for the class bears the same relationship to the value of the work performed in the class as the pay equity job rates for the key female job classes bear to the value of the work performed in those classes.

Comparison methods

(2) The comparisons referred to in subsection (1) shall be carried out using the proportional value method of comparison,

(a) in the case of a comparison under clause (1)(a), as if the female job classes in the proxy establishment were male job classes of the seeking employer; and

(b) in the case of a comparison under clause (1)(b), as if the key female job classes of the seeking employer were male job classes of the seeking employer.

Comparison system

(3) The comparisons shall be carried out using a gender-neutral comparison system.

(Emphasis added)

[59] As s. 21.15(2)(a) states, the female job classes in the proxy establishment are treated "as if [they] were male job classes of the seeking employer" for the purpose of comparison to a key female job class in the seeking establishment. The reason the proxy female job class serves as a deemed male job class is because it has already achieved pay equity by way of comparison to a male job class within the proxy employer's establishment. Similarly, once the key female job classes have achieved pay equity, s. 21.15(2)(b) states that they are treated "as if [they] were male job classes of the seeking employer" for the purpose of comparison to any other female job classes within the seeking employer's establishment.

[60] The AGO submits that the Divisional Court disregarded the fact that the comparison under the proxy method happens between female job classes, and so there is no comparison between male and female work. I do not agree. While the direct comparison is between the key female job class in the seeking employer's establishment and a deemed male comparator in the proxy establishment, women in the seeking employer's establishment benefit from the fact that the deemed male comparator has direct access to a male comparator. This permits comparison between male and female work even if there is not a direct comparison, as under the proportional value or job-to-job methods.

[61] To sum up, all three comparison methods involve a direct or indirect comparison between female and male job classes. As I will explain, it is unreasonable to interpret the Act as doing away with an ongoing deemed male comparator when it comes to the employer's duty to maintain pay equity in female-dominated establishments that used the proxy method to establish pay equity.

The ongoing requirement for male comparators in maintenance

[62] The Tribunal's distinction between the application of Part III.2 to the obligation to establish pay equity and the obligation to maintain pay equity is not grounded in the plain language or scheme of the Act, which makes no such distinction between the methods to be used for establishing and maintaining pay equity. Nor is the distinction consistent with the purpose of the Act.

[63] The Act is divided into various parts. Part I of the Act, entitled "General", includes ss. 1 - 9 of the Act. Among other things, Part I sets out the purpose of the Act (s. 4(1)), and the employer's duty to "establish and maintain compensation practices that provide for pay equity" (s. 7(1)). Both establishing and maintaining pay equity are directed at achieving the purposes of the Act, namely, to redress systemic discrimination in compensation.

[64] Part I also explains how "pay equity is achieved" in s. 5.1(1):

5.1(1) For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison or the proportional value method of comparison and any adjustment to the job rate of each female job class that is indicated by the comparison has been made.

(Emphasis added)

[65] I would make two observations about s. 5.1(1).

[66] First, "achieve" in s. 5.1(1) is not synonymous with "establish" in s. 7(1). As a matter of statutory interpretation, "[i]t is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings": Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at 8.32.

[67] Second, s. 5.1(1) opens with the words "[f]or the purposes of the Act". The purposes of the Act include both establishing and maintaining pay equity. As such, the methods in s. 5.1(1) are not limited to establishing pay-equity-compliant compensation practices. Rather, they also apply in maintaining them.

[68] Moreover, not using the proxy method to maintain pay-equity-compliant compensation practices would undermine the purpose of the Act.

[69] The Supreme Court's decision in Alliance demonstrates the inequity that arises when compensation for female employees is not tied to that for males on an ongoing basis: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, [2018] 1 S.C.R. 464, 2018 SCC 17. In Alliance, the court considered the maintenance provisions of the Quebec legislation, which required that women wait five years before applying for pay equity maintenance. At para. 38, the court identified the systemic nature of pay discrimination and how the impugned legislation created barriers to addressing the problem:

Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men -- namely, compensation tied to the value of their work. Men receive this compensation as a matter of course; women, under this scheme, are expected to endure five-year periods of pay inequity, and to receive equal compensation only where their employer voluntarily acts in a non-discriminatory manner, or where they can meet the heavy burden of proving the employer engaged in deliberate or improper conduct. The scheme thus places barriers along the path to equal pay for women.

[70] So too here. The Tribunal's elimination of male comparators for women in predominantly female job classes places "barriers along the path" to equal pay for women. I will explain.

[71] Alliance, and the Supreme Court's companion decision, Centrale des syndicats du Québec v. Quebec (Attorney General), [2018] 1 S.C.R. 522, 2018 SCC 18 ("CSQ"), explain that [at para. 6] "'women's work' is valued less than 'men's'". Since the devaluation is systemic, it follows that it will continue to exist within the seeking employer's establishment after pay equity is established. Any internal adjustment to the value/ compensation ratio in an establishment without male comparators will include systemic assumptions about the value of women's work and result in a smaller adjustment than if the work were valued in the same way that men's work is valued.

[72] The importance of the male comparator is demonstrated by the fact that -- in non-proxy cases -- the Tribunal routinely uses the same method for maintaining pay equity as was used to establish pay equity in the first place: BICC Phillips (October 7, 1997) 0590-96 (P.E.H.T.); Canadian Union of Public Employees v. Peterborough (City); Ottawa Board of Education (May 28, 1996) 0473-93; 0474-93; 0485-94; 0487-94 (P.E.H.T.); Ontario Secondary School Teachers' Federation on behalf of the Educational Assistants Bargaining Unit v. Simcoe Muskoka Catholic District School Board.

[73] In recognition of the potential for systemic discrimination to re-emerge, in job-to-job and proportional value establishments there is continual reference back to the male comparators rather than setting a value/compensation ratio for the female job classes and maintaining pay equity only by reference to that initial ratio. The regular reference back to male comparators is undertaken because women's work continues to be systemically undervalued. A 1994 ratio cannot account for any devaluation that has taken place since that date.

[74] Women in establishments without male comparators are most at risk of being affected by discrimination, as noted in CSQ, at para. 29:

Moreover, since women in workplaces without male comparators may suffer more acutely from the effects of pay inequity precisely because of the absence of men in their workplaces, these categories single out for inferior treatment the group of women whose pay has, arguably, been most markedly impacted by their gender.

[75] The Tribunal's maintenance method fails to provide a means to redress systemic discrimination on an ongoing basis for these most vulnerable women. The Tribunal's maintenance method assumes there is no discrimination unless the ratio used to establish pay equity is no longer being maintained. Under its method, which relies on an outdated comparison, re-emerging systemic discrimination would not be identified and addressed.

[76] In explaining its reasons for rejecting the proxy method for maintenance, the Tribunal describes a number of features of the Act, noting that in the context of the Act as a whole the proxy method is "extraordinary". Among other things, the Tribunal states that [at para. 117] "[t]he Act's focus is on the specific compensation practices that determine what an employer pays its own female job classes in a given establishment". It emphasizes what it describes as [at para. 133] "the over-riding principle that the Act mandates each individual employer to whom it applies to ensure that its own compensation practices are free from gender discrimination" (emphasis in original).

[77] With respect, the Tribunal lost sight of the fact that pay equity can be maintained internally when using the job-to-job and proportional value methods as a consequence of the fact that there are internal male comparators. The over-riding principle or purpose of the Act is not internal comparison but rather redressing systemic discrimination in compensation for work performed by employees in female job classes.

[78] The Tribunal also made the point that the Act does not require wage parity, and it emphasized that not all differences in compensation are necessarily attributable to gender discrimination [at paras. 90 and 93]:

The Act does not require wage parity as between different employers. Two different employers operating the same kind of business in the same geographic area may have pay-equity-compliant compensation practices even though the female job classes performing the same or substantially similar duties for each of those employers do not receive similar compensation. In other words, the Act contemplates that the rates of pay for the same or similar women's work may vary depending on the identity and characteristics of their employer.

The Act recognizes that not all differences in compensation between comparably-valued men's and women's work (where the women's work is paid less) in the same establishment are necessarily attributable to gender discrimination. Section 8(1) of the Act outlines a number of situations where such difference(s) in compensation need not be redressed.

(Emphasis in original)

[79] I accept that wage parity is not the measure of whether there is inequity in compensation that must be redressed. Rather, the Act provides that pay equity is achieved by using one of the three comparison methods and making the required adjustments, whether or not that results in parity between different employers.

[80] I also accept that s. 8 expressly permits some differences in compensation:

8(1) 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,

(a) a formal seniority system that does not discriminate on the basis of gender;

(b) a temporary employee training or development assignment that is equally available to male and female employees and that leads to career advancement for those involved in the program;

(c) a merit compensation plan that is based on formal performance ratings and that has been brought to the attention of the employees and that does not discriminate on the basis of gender;

(d) the personnel practice known as red-circling, where, based on a gender-neutral re-evaluation process, the value of a position has been down-graded and the compensation of the incumbent employee has been frozen or his or her increases in compensation have been curtailed until the compensation for the down-graded position is equivalent to or greater than the compensation payable to the incumbent; or

(e) a skills shortage that is causing a temporary inflation in compensation because the employer is encountering difficulties in recruiting employees with the requisite skills for positions in the job class.

(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.

[81] This section acknowledges that systemic discrimination continues to exist even though there are circumstances in which it does not follow necessarily that differences in compensation are the result of discrimination.

[82] The Tribunal admitted that [at para. 116] "there is no provision in Part III.2 that expressly constrains a seeking employer from requesting [the pay-equity-compliant rate for the proxy employer's job classes] on an ongoing basis". However, it was concerned that it would be "an onerous task for the proxy employer". In its view, obtaining the necessary information from the proxy employer would be a [at para. 117] "substantial practical impediment". In any event, the Tribunal concluded that the Act did not require such information sharing.

[83] As the Tribunal recognized, the Act does not constrain a seeking employer from requesting information from a proxy employer on an ongoing basis. Indeed, s. 21.17(1) provides a means for seeking employers to access necessary information about the compensation practices and working conditions within the proxy establishment. It is not limited to the "establishment" phase. Section 21.17(1) states that the purpose of getting such information is to make a comparison to a key female job class using the proxy method.

Unreasonable decision

[84] As Vavilov instructs at para. 100, before a reviewing court can set aside a decision on the basis that it is unreasonable, the court "must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency". While the Tribunal's reasons are transparent and intelligible, there is nothing in the Act that would justify eliminating a male comparator for maintaining pay equity in establishments where the proxy method was used to establish pay equity. In my view, the only reasonable interpretation of the Act is that it requires the use of the proxy method in maintaining pay-equity-compliant compensation practices in such establishments.

Charter values

[85] My conclusion that the Tribunal's decision is unreasonable rests on the application of the modern principle of statutory interpretation. It is unnecessary to determine whether the Tribunal also erred in failing to take into account Charter values in interpreting the Act. While I leave the Charter values issue for another day, I would question the need to resort to a Charter values analysis in a situation like this one where the Charter value in question -- equality -- is consistent with the purpose of the legislation, which is to redress discrimination in compensation. Accordingly, there is no need to determine whether Taylor-Baptiste was wrongly decided on the question of Charter values.

Disposition

[86] I would dismiss the appeals.

[87] I agree with the Divisional Court that the matter should be remitted to the Tribunal to specify what procedures should be used to ensure that those employees, represented by the Unions, who have established pay equity through the proxy method, will continue to have access to male comparators to maintain pay equity.

[88] I would also dismiss the cross-appeal. It is not necessary to address the cross-appeal, which was initiated if this court allowed the appeals.

[89] I would invite submissions as to costs (limited to five pages) within 15 days of the release of this decision.

HUSCROFT J.A. (dissenting):

Overview

[90] The legislative obligation in this case is clear. Section 7(1) of the Pay Equity Act, R.S.O. 1990, c. P.7, requires the parties to "establish and maintain compensation practices that provide for pay equity in every establishment of the employer". But while the Act sets out several methods for establishing pay equity, it says nothing about how pay equity is to be maintained once it has been achieved. The question for the Pay Equity Tribunal was how compensation practices that provide for pay equity are to be maintained in workplaces where pay equity has been achieved by means of proxy comparison.

[91] In order to answer this question, the Pay Equity Tribunal held hearings over a period of several days and heard not only from the parties but also the Attorney General for Ontario, who was granted permission to intervene in the proceedings. The Tribunal heard evidence from lay and expert witnesses concerning the operation of the homes party to this dispute; the relationship of the homes to the government; employment in the homes; the bargaining relationship of the workplace parties; and the negotiation of the parties' pay equity plan in 1994, which culminated in the achievement of pay equity when the final pay adjustment was made in 2005.

[92] The Tribunal wrote a lengthy and detailed decision that runs to 76 single-spaced pages. The decision reviews the history of the legislation, the study that gave rise to the amendments establishing the proxy comparison system, and the government's various discussion papers and legislative statements. It also discusses the repeal of the proxy method and the decision in Service Employees International Union, Local 204 v. Ontario (Attorney General) (1997), 35 O.R. (3d) 508, which declared the repeal to be unconstitutional and of no force or effect.

[93] The Tribunal analyzed the positions of the parties and reviewed its case law. Ultimately, the Tribunal decided not to adopt either of the parties' positions. Instead, the Tribunal outlined a formula for compensation practices in the parties' workplaces that maintains pay equity by maintaining the ratio between the hourly wage and the point value of the relevant job. The Tribunal explained the operation of this formula in a series of detailed examples. Finally, the Tribunal made an order requiring the parties to negotiate and endeavour to agree on an amendment to their pay equity plans to stipulate a Gender Neutral Comparison System ("GNCS") and to apply it to determine whether any maintenance adjustments are required.

[94] The majority of the court concludes that the Tribunal's decision is unreasonable. Although they assert that the decision cannot identify and address re-emerging systemic discrimination, they do not say that it fails to maintain pay equity. Instead, they conclude that there is only one way in which pay equity is to be maintained -- only one reasonable interpretation of the Act: if pay equity was established using the proxy comparison method set out in the Act, it must be maintained using the proxy comparison method. The Tribunal's decision is unreasonable, the majority concludes, because it does not adopt this interpretation.

[95] I disagree.

[96] The Tribunal's decision is thorough and cogent and makes sense of an extremely complicated legislative scheme. The decision reflects the Tribunal's considerable expertise, not only in pay equity but also in the diverse labour relations contexts in which pay equity disputes arise -- unionized and non-unionized workplaces, and workplaces where binding interest arbitration replaces the right to strike. It is entitled to deference from this court. I see no basis to conclude that it is unreasonable.

[97] I would allow the appeal for the reasons that follow. I would not decide the cross-appeal without additional submissions from the parties.

Discussion

The nature and purpose of reasonableness review

[98] At the outset, it is important to review the nature and purpose of reasonableness review and to consider the changes wrought by the majority decision of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[99] Reasonableness review differs fundamentally from correctness review. Correctness review assumes a binary: decisions are either right or wrong, and it is the court's task to ensure that wrong decisions are corrected, whether or not they appear to be reasonable or were made reasonably. In contrast, reasonableness review usually assumes a range of reasonable decisions, and the court's task is to ensure that a particular decision is transparent, intelligible and justified. Correctness review premises de novo review by the court, whereas reasonableness review involves scrutinizing the reasons for an administrative decision to see whether they justify that decision.

[100] The key point is this: reasonableness is an inherently deferential standard of review. Where the reasonableness standard of review applies, courts are required to defer to and uphold decisions with which they may not agree, provided only that those decisions are reasonable. Correctness review involves no such compromise.

[101] Vavilov does not alter the distinction between correctness and reasonableness review. The key change effected by Vavilov is the elimination of the contextual approach to selecting which standard of review applies. Henceforth, it is presumed that reasonableness review applies to the decisions of administrative decision makers. This presumption may be rebutted if the legislature has prescribed the relevant standard of review, as it may, for example, by establishing a right of appeal, in which case correctness review must be applied.

[102] The presumption that reasonableness review applies may also be rebutted if the rule of law requires that correctness review be applied. Specifically, the presumption is rebutted for constitutional questions, questions of law that are of central importance to the legal system as a whole, and questions concerning the jurisdictional boundaries between two or more administrative bodies -- questions for which the rule of law requires consistency and a final, determinate answer. These categories are not to be understood as closed, but nor are they to be expanded beyond their purpose: preventing the rule of law from being undermined and supporting the proper functioning of the justice system.

[103] Much could be said about this, but for the purposes of this appeal there is no need to consider the requirements of either the rule of law or the proper functioning of the justice system. It is plain that the decisions of the Pay Equity Tribunal are subject to reasonableness review. The question is: how does reasonableness review operate?

[104] Vavilov provides considerable guidance in this regard, but the essential nature of reasonableness review has not changed. Reasonableness review was, and remains, a deferential form of review. It is a form of review that "respects the distinct role of administrative decision makers"; involves "a minimum of judicial interference"; and requires a "posture of restraint" by the reviewing court: Vavilov, at paras. 75 and 24. As the court reiterates, "[r]easonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process," Vavilov, at para. 13 (emphasis added).

[105] Vavilov confirms that the reasonableness of a particular decision is to be assessed having regard to the reasons proffered for that decision. The court is not to ask what decision it would have made and then compare the decision under review against the benchmark it has established. Nor is the court to identify the range of possible decisions that could have been made in order to see whether the decision under review falls within it. The question for the court is whether the decision under review is transparent, intelligible and justified.

[106] The underlying tension in Vavilov concerns the intensity of the reasonableness review the court endorses. The court reiterates that "[r]easonableness is a single standard that takes its colour from the context", at para. 89, suggesting differing intensity of review, if not different standards, in different contexts: see David Mullan, "Reasonableness Review Post- Vavilov: An 'Encomium for Correctness', or Deference as Usual?" (Paper delivered at the What Difference will Vavilov Make? Views from Workplace Law and Beyond Webinar, October 16, 2020), at pp. 16-17. Be that as it may, reasonableness remains a deferential form of review, substantially different from correctness, as the court's emphasis on concepts such as "respect" and "restraint" demonstrates. At the same time, however, the court describes reasonableness as a "robust" form of review: Vavilov, at para. 13.

[107] To the extent that the adjective "robust" simply emphasizes that reasonableness review is not to function as a rubber stamp, no problem arises. But it must be acknowledged that there are statements in the majority decision that appear to be in tension with the concept of deference. For example, the court speaks of constraints on administrative decision makers and, significantly, states that there will sometimes be only one reasonable interpretation of a statutory provision: Vavilov, at paras. 90 and 110. This seems unobjectionable in theory; the legislature is usually able to make its intention clear. But how is a court to conclude there is but one reasonable interpretation if it is not to perform de novo analysis or determine the correct interpretation of the legislation itself, which the court specifically precludes? The court acknowledges the problem but states simply: "it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable interpretation": Vavilov, at para. 124.

[108] This statement must be read in the context of the court's endorsement not only of deference, but also of the continued importance of an administrative decision maker's expertise. Although expertise is no longer a relevant consideration in determining which standard of review applies, it remains important to the manner in which reasonableness review is conducted. Specialized knowledge matters. As the court emphasized at para. 93:

In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker's demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision.

This is an important admonition that in my view should be heeded in this case.

[109] Courts lack the expertise that specialist administrative decision makers have; they simply do not know what they do not know about the way in which a complex regulatory scheme such as pay equity operates. Of course, this is not a reason for a reviewing court to conclude that any and all decisions from specialized tribunals are reasonable; it is, however, a reason for the court to exercise considerable caution before concluding that a particular decision is unreasonable, especially if in making that decision the tribunal is acting within the sphere of its specialized knowledge, carrying out its mandate to create solutions to problems.

The Pay Equity Tribunal's decision

[110] As Vavilov instructs, the court's focus on judicial review must be on the Tribunal's reasons. The court needs to understand how the Tribunal reached its decision before it can determine whether that decision is reasonable.

[111] After noting the absence of a definition of "maintenance" in the Act, the Tribunal reviewed all of the provisions and regulations in which the term appears and found that none of them provided any indication of how pay equity was to be maintained. Thus, the Tribunal stated that [at para. 106] "the scope of [the obligation to maintain pay equity] must be ascertained from a consideration of the Act as a whole", and that the plain meaning of the word "maintain" suggests that [at para. 107] "the obligation is to continue the compensation/ value relationship that is established when a female job becomes pay equity compliant". There is nothing unreasonable in any of this.

[112] The Tribunal reviewed its case law and adopted the approach taken in previous cases [at para. 110]: "[m]aintenance is the means by which an employer ensures that compensation practices are kept up-to-date and remain consistent with pay equity principles". The Tribunal distinguished maintenance of pay equity from the sorts of change in circumstances that require a formal review or reposting of a pay equity plan -- for example, changes in the operational structure of an establishment, the unionization of an employer, or the merger of employers. The Tribunal found that the changes alleged in this case -- changes to job responsibilities or educational requirement of the job classes and changes in the acuity and demands of the patients in the homes -- were the sorts of changes that had to be addressed in the pay equity maintenance process.

[113] The problem was that the way in which the parties developed their pay equity plan in this case rendered it difficult to measure the value of work performed on an ongoing basis. As outlined below, the parties did not agree to a GNCS, nor did they evaluate any job classes. Thus, even assuming that their pay equity plan was accurate when the agreement was made, the Tribunal could not be certain that it remained so.

[114] The Tribunal considered and rejected the parties' focus on compensation changes as the only variable with which the maintenance obligation is concerned because it failed to address changes in what the Tribunal identified as the key variable: the value of the job classes. The Tribunal rejected the employers' argument that across-the-board wage increases could maintain pay equity; this was true only if the value of the job classes in the seeking establishment remained unchanged. Similarly, the Tribunal rejected the unions' argument that wage differences between employees in Municipal Homes versus the homes in this case meant that pay equity was not being maintained; the Act requires an assessment not simply of whether compensation has changed, but whether the relative value of job classes compared to their compensation has changed.

[115] The Tribunal found that wage rates for the same job class varied from one home to another and that implementation of pay equity adjustments did not lead to uniform pay rates across the homes. Further, although a number of changes occurred since the pay equity plan was executed, those changes have not been addressed in the interest arbitration process. A pay gap between wages and benefits in the homes and in the Municipal Homes developed and increased. That being said, the Tribunal emphasized that the obligation to maintain pay equity was more than simply accounting for changes in compensation and had to be capable of application to all public sector workplaces -- both union and non-union, and regardless of the operation of interest arbitration.

[116] The Tribunal reiterated the importance of monitoring job duties and responsibilities to ensure that comparator job classes remain appropriate, while noting the difficulty in doing so: although compensation rates are in the public domain, information about changes in job duties and responsibilities is not. The proxy employer's obligation to maintain pay equity in its own establishment makes it difficult to determine the pay equity compliant rate for its job classes at any given time. The Tribunal considered that there was "a substantial practical impediment" to obtaining information to enable a proxy plan to be updated or maintained to reflect changes in the value or compensation rates for the proxy female job classes. But this was not what the Act requires in any event: the focus of the Act is on the compensation practices specific to individual establishments.

[117] The Tribunal found that pay equity can be maintained for both non-key female job classes and the key female job class without continuing resort to the compensation practices in the proxy establishment. Pay equity is to be maintained by ongoing monitoring of changes to either the compensation or the value of female and male job classes (including deemed male job classes). The Tribunal sets out a detailed and specific methodology and illustrates its operation with several specific examples.

[118] Finally, the Tribunal concluded that changes in the clientele and the duties performed in the homes may impact the value of the job classes, but the pay equity consequences could be determined only by evaluating the job information using a GNCS, which the parties' plans lacked. Accordingly, the Tribunal ordered the parties to negotiate and endeavour to agree on an amendment to their pay equity plans to stipulate a GNCS and to apply it to determine whether any maintenance adjustments are required.

The Tribunal's decision is reasonable

[119] I repeat what I said at the outset: the Tribunal's decision is thorough and cogent. It makes sense of an extremely complicated legislative scheme, a scheme with which the courts have virtually no familiarity. The Tribunal's decision reflects its considerable expertise, not only in pay equity but also in the diverse labour relations contexts in which pay equity disputes arise -- unionized and non-unionized workplaces, and workplaces where binding interest arbitration replaces the right to strike. I see no basis to conclude that the decision is unreasonable.

[120] There is no doubt that the unions prefer proxy methodology because they suppose that it will yield greater monetary benefits. But as the Tribunal was at pains to point out, the pay equity obligation established by the Act is establishment-specific. The Act is not designed to deliver wage parity; it is designed to require pay equity compliant compensation practices in each establishment covered by the Act. This may well mean different pay rates for female job classes across employers -- differences that may be the result of unionization and the nature of bargaining unit configurations in different workplaces.

[121] The importance of changes in the value of work performed is key to the Tribunal's decision. And this case was difficult, among other reasons, because the parties did not follow the prescribed procedure in making their pay equity agreement. They did not agree to a GNCS. They did not evaluate any job classes on the basis of the skill, effort, responsibility and working conditions in the seeking or proxy establishments. Instead, they simply negotiated a pay equity settlement based on the assumptions that the employees possessed similar skills whether they worked in a Municipal or private home; they performed the same duties under the same conditions; and that their work was of the same value to Municipal and private homes. Their negotiated settlement was deemed approved despite technical non-compliance with the Act and its validity was not challenged in these proceedings. But in the absence of a GNCS the Tribunal could not be sure that the assumptions on which the Proxy Plans were based were accurate when the plans were developed or that they remained accurate in any event.

[122] The majority concludes not only that the Tribunal's decision is unreasonable, but also that there is only one reasonable interpretation of the statutory requirement to maintain pay equity: in an establishment in which pay equity was achieved using the proxy method, it must be maintained by using the proxy method. According to the majority reasons, the Tribunal's decision "ignores the purpose, scheme and plain wording of the Act".

[123] With respect, I disagree.

[124] The Tribunal cannot be said to have ignored anything, let alone the "purpose, scheme and plain wording of the Act". It fully understood the problem before it. As the Tribunal stated, the purpose of the Act is [at para. 22] "to redress systemic gender discrimination in compensation". The proxy method was established precisely because the job-to-job comparison method could not achieve this purpose. As for the "plain wording" of the Act, the difficulty presented by this case is the absence of plain wording: although the Act mandates the maintenance of pay equity, it says nothing about how it is to be maintained.

[125] It may well seem counterintuitive that pay equity achieved in one manner should not be maintained in the same manner. But the Tribunal considered that approach and explained why it was neither practical nor necessary to use the proxy method to maintain pay equity. Differences arising in the compensation/value relationship in a proxy employer may be attributable to bargaining strength rather than systemic discrimination. They may also be attributable to other non-discriminatory reasons, even if the employees are performing work of the same value. This is a problem because the Pay Equity Act is not intended to redress differences in pay across employers per se; it is intended to address only those differences that are the result of systemic discrimination. Nor is the Act intended to establish industry or sectoral wage standards.

[126] The majority acknowledges this point but does not follow through on the implications. Regardless of how pay equity is established, the obligation to establish and maintain pay equity falls on individual employers. This is the sense in which the Tribunal refers to the proxy methodology as "extraordinary": although the obligations to establish and maintain pay equity apply to individual employers and their establishments, where the proxy methodology applies pay equity is established having regard to the practices of a different, unrelated employer.

[127] The Tribunal specifically considers and rejects the interpretation the majority concludes is the only reasonable one available. Although the majority sets out the relevant passages from the decision in which the Tribunal outlines and explains its formula for maintaining pay equity, they do not engage with the Tribunal's reasons. Significantly, the majority does not say that the Tribunal's methodology would not maintain pay equity at the Homes.

[128] The majority criticizes the Tribunal for failing to address s. 21.13, which it says leads to a loss of confidence in the Tribunal's decision. But the Tribunal devotes numerous pages to explaining the operation of the proxy system and its purpose in redressing systemic discrimination. There is no basis to suggest that the Tribunal misunderstood its mandate and no basis to lose confidence in its decision. The Tribunal's decision is sensitive to the purpose and scheme of the Act throughout.

[129] The majority's argument is not advanced by the general wording of s. 5.1(1), and in particular introductory words "[f]or purposes of this Act", nor by purported distinctions between the terms "achieve", "establish" and "maintain". It is simply asserted that the Tribunal's method would not identify and address re-emerging systemic discrimination.

[130] The premise underlying the majority reasons is that the Tribunal has eliminated male comparators for women in predominately female job classes. The problem with this premise is that the proxy method operates without comparison to male job classes in the proxy establishment. The comparison is with the key female job class in the proxy employer, in which pay equity has been achieved. That class is treated as though it is a male job class in the seeking employer's establishment, and then used to establish pay equity in the various female job classes. There is no obvious reason why maintenance of the compensation/value ratio established by the proxy comparison would not maintain pay equity in the relevant establishment, regardless of the absence of male comparators.

[131] At the end of the day, the Tribunal's decision identifies the relevant issues and engages with the legislation and the arguments of the parties in a manner that is sensitive to the purpose of the Act and the proxy system in particular. The Tribunal was faced with a particular problem in this case: the parties negotiated a settlement of their pay equity issues in 1995 rather than following the proxy methodology prescribed in the Act. In the absence of a GNCS, the consequences of changes since the pay equity agreement was negotiated could not be ascertained. Accordingly, the Tribunal ordered the parties to negotiate and endeavour to agree on an amendment to their pay equity agreement to stipulate a GNCS and apply it to determine whether any maintenance adjustments were necessary. There is nothing unreasonable in this.

[132] The Tribunal's reasons are comprehensive. The Tribunal reviews the positions of the parties and explains why it rejects them. It explains and demonstrates the operation of its formula for maintaining pay equity, which uses a value/ compensation ratio for the key female job classes to maintain pay equity in all of the female job classes in the seeking employer. There is no failure of internal rationality nor are the Tribunal's reasons marred by any logical fallacies. In short, the decision is reasonable and should be upheld. With respect, the majority reasons lose sight of the purpose of reasonableness review and ultimately collapse into correctness review. It is significant that the word "deference" is nowhere to be found in the majority reasons.

[133] Care must be taken in deciding that there is but one reasonable interpretation of a complicated regulatory regime such as pay equity. There may well be only one reasonable interpretation of rule-like language in a statute -- "precise and narrow" language, as the court put it in Vavilov, at para. 110 -- but there is no such language at issue in this case. I do not accept that the Tribunal has profoundly misunderstood and undermined its mandate, as the majority reasons suggest. The Tribunal's decision accords with the longstanding understanding at the Pay Equity Commission, which was set out in A Guide to Interpreting Ontario's Pay Equity Act, as well as the Ministry of Labour's 1992 "Discussion Paper on Pay Equity: Implementing Proxy Comparisons", both of which contemplated onetime-only comparisons with the proxy employer in order to establish pay equity. These are not binding sources of law, of course, but they lend further support to the conclusion that the Tribunal's decision is reasonable.

[134] I conclude that the Tribunal's decision is reasonable.

The Charter arguments

[135] This court granted leave to appeal from the decision of the Divisional Court and constituted a five-member panel to hear this appeal because this court's decision in Taylor-Baptiste v. Ontario Public Service Employees Union (2015), 126 O.R. (3d) 481, 2015 ONCA 495, was challenged. The respondents cross-appealed, arguing that if the Tribunal's decision was not unreasonable, then the Act violated the Canadian Charter of Rights and Freedoms.

[136] The majority concludes that it is unnecessary to address the Charter values or the Charter violation arguments in light of its decision that the Tribunal's decision is unreasonable. My conclusion that the Tribunal's decision was not unreasonable renders it necessary for me to address the Charter arguments, and I do so below.

[137] I conclude that Charter values are relevant to statutory interpretation only where genuine ambiguity exists. To the extent that Taylor-Baptiste says otherwise, it should not be followed.

[138] I would not decide whether the legislation violates the Charter without further submissions from the parties.

The Divisional Court erred in applying Charter values

[139] The Tribunal considered and rejected the argument that Charter values applied so as to alter its interpretation of the Act. The Tribunal found that resort to Charter values as an interpretive aid is warranted only in the case of ambiguity and that the Pay Equity Act was not ambiguous.

[140] With respect, the Divisional Court erred in concluding that the Tribunal was required to consider Charter values in interpreting the relevant provisions of the Pay Equity Act. There was no basis to invoke Charter values, still less to conclude that the Tribunal's decision was at odds with the Charter value of equality in any event.

[141] The Divisional Court followed this court's decision in Taylor-Baptiste. In that case, the court acknowledged that the interpretive principle established in Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, 2012 SCC 12, applies in the context of the exercise of discretionary authority by administrative decision makers but asserted that, read as a whole, Doré requires Charter values to be considered in determining whether a person's conduct violated a statutory or regulatory rule. I set out the relevant passages from the court's decision for convenience, at paras. 54-57:

Their first submission is that an administrative tribunal can only consider Charter values in its decision-making if an ambiguity exists in the provision of its home or enabling statute at issue in a case. . . .

Binding authority prevents the acceptance of the appellants' submission. Slightly more than a decade after deciding Bell ExpressVu, the Supreme Court rejected an argument similar to the appellants' when, in R. v. Clarke, it stated, at para. 16:

Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers "must act consistently with the values underlying the grant of discretion, including Charter values" (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.

The appellants' second submission is that the Charter values interpretive principle articulated in Doré only applies to instances where an administrative decision-maker exercises a discretionary power, such as crafting a remedy. They say it does not apply to the kind of adjudicative decision made by the Tribunal in this case -- i.e. whether the respondents' conduct violated s. 5(1) of the Code.

While I take the appellants' point that in both Doré and Loyola High School the Supreme Court frequently referred to the exercise of a discretionary power under a home statute, in my view the decision in Doré, when read as a whole, prevents the acceptance of the appellants' submission. First, in Doré the Court stated that "administrative decisions are always required to consider fundamental values" (emphasis in original). Second, the context which framed the court's discussion in Doré was analogous to the present case -- i.e. the determination by an administrative tribunal about whether a person's conduct had violated the strictures of a statutory or regulatory rule.

(Footnotes omitted)

[142] With respect, these passages misstate the law. The limited role of Charter values in interpreting legislation was outlined by the Supreme Court in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42. In that case, Iacobucci J., writing for the court, stated at para. 62:

Statutory enactments embody legislative will. They supplement, modify or supersede the common law. More pointedly, when a statute comes into play during judicial proceedings, the courts (absent any challenge on constitutional grounds) are charged with interpreting and applying it in accordance with the sovereign intent of the legislator. In this regard, although it is sometimes suggested that "it is appropriate for courts to prefer interpretations that tend to promote those [Charter] principles and values over interpretations that do not" (Sullivan, supra, at p. 325), it must be stressed that, to the extent this Court has recognized a "Charter values" interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations.

(Emphasis in original)

[143] In short, Charter values are relevant only to the interpretation of legislation that is genuinely ambiguous. The same rule applies for administrative decision makers as for courts: Wilson v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 300, 2015 SCC 47.

[144] This approach is hardly surprising. Statutory interpretation is concerned with identifying and giving effect to the intention of the legislature. The Charter does not change this. If legislation is in some way inconsistent with the Charter it is of no force or effect to the extent of the inconsistency, but before that conclusion is reached the legislation may be defended on the basis that it establishes a reasonable limit on the Charter right at stake. It is no part of the interpreter's task to preclude a finding of inconsistency with the Charter, or the attendant consequences, by interpreting legislation so as to avoid that inconsistency. The exception is for legislation that is ambiguous, and the ambiguity must be genuine. Justice Iacobucci describes genuine ambiguity as arising when a statutory provision is "subject to differing, but equally plausible, interpretations" (emphasis added): Bell ExpressVu, at para. 62. Charter values are not to be used "to create ambiguity where none exists": R. v. Clarke, [2014] 1 S.C.R. 612, 2014 SCC 28, at para. 1.

[145] The narrowness of the concept of ambiguity must be emphasized, for ambiguity is a concept that is often misunderstood. Genuine ambiguity in a statute is rare; it arises only where the legislature has failed to specify between two -- rarely more -- meanings that are semantically possible. Ordinarily, ambiguity can be resolved using the tools of statutory interpretation; read in context, the legislature's intended meaning will usually be the only plausible meaning, and hence the meaning that must be adopted. In those rare circumstances in which the intention of the legislature cannot be inferred it is sensible to adopt the interpretation that conforms to Charter values rather than the one that does not: the legislature could be presumed to have intended to adopt the plausible interpretation that is consistent with Charter values.

[146] Ambiguity is often confused with vagueness, but the terms are not interchangeable. The various forms of indeterminacy and helpful academic authorities are discussed by Miller J.A. in Pong Marketing and Promotions Inc. v. Ontario Media Development Corp. (2018), 142 O.R. (3d) 542, 2018 ONCA 555, at paras. 44-48. Unlike ambiguity, vagueness is anything but rare; indeed, vagueness is ubiquitous in many fields of regulation governed by standards rather than rules. Vaguely worded legislation has a core of determinate or clear meaning, but a penumbra that may be quite large; its application is to this extent underdetermined. Legislative standards are often underdetermined, but this is usually resolved by case law that develops meaning of the vague standard. The "duty to bargain in good faith" is a well-known concept in labour relations law that is vague, not ambiguous; its meaning is fleshed out in the case law of the Labour Relations Board, the expert body charged with responsibility for interpreting and applying, and so developing, the duty.

[147] The essential purpose of statutory interpretation was not altered by passage of the Charter. Administrative decision makers and courts must determine and give effect to the intention of the legislature. They are neither mandated nor permitted to disregard the intention of the legislature in order to give effect to Charter values. Indeed, the Charter does not require the court to interpret legislation in a manner consistent with the rights it specifically protects.

[148] In this regard, the Charter differs from the New Zealand Bill of Rights and the U.K. Human Rights Act, both of which require courts to interpret legislation in a manner consistent with the rights they protect. But the difference between the Charter and these rights instruments is significant: only the Charter authorizes courts to refuse to give effect to legislation that is inconsistent with the protected rights. The requirement of rights-consistent interpretation is not part of the Canadian approach to statutory interpretation because it is necessary to give effect to both the intention of the legislature and the supremacy of the Constitution. Put another way: the consequences of inconsistency with the Charter are not to be avoided by a strategy of adopting rights-consistent interpretations regardless of the legislature's intentions.

[149] Bell ExpressVu is well-established authority that has been upheld consistently: see R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15, Clarke and Wilson. It was relied on by this court in Ontario Medical Assn. v. Ontario (Information and Privacy Commissioner), [2018] O.J. No. 4107, 2018 ONCA 673, at para. 20, and recent decisions of this court including Gehl v. Canada (Attorney General) (2017), 138 O.R. (3d) 52, 2017 ONCA 319; T. (E.) v. Hamilton-Wentworth District School Board (2017), 140 O.R. (3d) 11, 2017 ONCA 893; and McKitty (Litigation guardian of) v. Hayani, [2019] O.J. No. 5134, 2019 ONCA 805 all contemplate a limited role for Charter values and a limited conception of them.

[150] To the extent that Taylor-Baptiste suggests that Charter values have a role to play in statutory interpretation in the absence of ambiguity, it is inconsistent with this authority and should not be followed.

[151] The interpretation of legislation -- even vaguely-worded legislation -- does not constitute an exercise of discretionary decision-making authority to which Charter values apply. Although vagueness connotes a range of decisions that may be made, that range is always understood in the context of the intention of the legislature. The interpretive exercise is different in kind from the exercise of authority to make a discretionary decision or to exercise discretionary remedial authority.

[152] I would add this: the application of Charter values is often problematic because of the failure to appreciate the difference between concepts such as rights and values. The terms are often used interchangeably but they are not interchangeable. The Charter is an exhaustive statement of the rights and freedoms it protects. In contrast, there is neither a list of Charter values nor a canonical formulation of them: McKitty, at para. 95, per Miller J.A. Such values as have been recognized -- things such as dignity; privacy; autonomy; and fairness -- are general and abstract concepts. Although they trade on the Charter adjective, they are not Charter rights. They are, in general, reasons for Charter rights -- reasons that help explain why certain rights were accorded constitutional protection.

[153] The underlying reasons for protecting rights are invariably broader than the rights themselves. Consider the concept of dignity. People have rights, we might say, because they are possessed of inherent human dignity. But the claims of morality are not coextensive with the requirements of legality; not all moral claims find expression in constitutionally protected legal rights. Thus, although the decision to extend constitutional protection to particular rights arises out of respect for human dignity, human dignity is not a freestanding right or freedom under the Charter. It is not justiciable per se. Care must be taken in identifying and applying Charter values, lest they supplant the rights from which they are inferred.

[154] Equality seems to be an uncontroversial Charter value; it appears to be identical to the Charter right. But what work is the concept of equality doing when it is invoked as a value as opposed to a right? The Charter value of equality is necessarily broader than the Charter right to equality -- a right that is limited not only by the text of s. 15 but also by decisions of the court emphasizing the negative purpose of the provision in preventing discrimination on enumerated and analogous grounds. And of course, s. 15 is, like all Charter rights, subject to such reasonable limits as may be imposed in a free and democratic society, pursuant to s. 1.

[155] The Divisional Court demonstrates the problem of invoking Charter values as interpretive imperatives by invoking "equality" to overturn the interpretation of human rights legislation by a specialized human rights tribunal whose decision was entitled to deference. If the Act is considered problematic on equality grounds because of the way in which it requires the maintenance of pay equity, the constitutionality of the Act may be challenged. That challenge should not be pre-empted by invoking the Charter value of equality to alter the proper operation of the Act.

[156] In summary, there is no ambiguity in the relevant Pay Equity Act provisions and hence it was wrong for the Divisional Court to invoke Charter values in interpreting the Act so as to override the Tribunal's decision. Taylor-Baptiste should not be followed. The Tribunal's decision is reasonable and should be upheld.

The cross-appeal

[157] Since the hearing of this case, the Supreme Court released its decision in Fraser v. Canada (Attorney General), [2020] S.C.J. No. 28, 2020 SCC 28. I would not decide the cross-appeal without inviting submissions from the parties concerning the effect of this case.

Appeal dismissed.

End of Document

Ontario Nurses' Association v. Participating Nursing Homes, 2021 ONCA 148

Case Summary

Ontario Nurses' Association v. Participating Nursing Homes

Case Summary

Cited Cases

Statutes Referred To

Authorities Referred To

Overview

Background

The parties

Ontario's pay equity legislation

The parties disagree on how to maintain pay equity

Charter values and s. 15 Charter rights

Tribunal decision

Divisional Court decision

Analysis

Guiding principles

The Tribunal's maintenance method

The Act requires female to male comparison

The ongoing requirement for male comparators in maintenance

Unreasonable decision

Charter values

Disposition

Overview

Discussion

The nature and purpose of reasonableness review

The Pay Equity Tribunal's decision

The Tribunal's decision is reasonable

The Charter arguments

The Divisional Court erred in applying Charter values

The cross-appeal

Judges

Counsel

Parties

Areas of Law

Legislation 2