Court of Appeal for Ontario

Date: 20210309 Docket: C67496

Strathy C.J.O., Benotto, Brown, Huscroft and Zarnett JJ.A.

BETWEEN

Participating Nursing Homes Applicants (Appellants)

and

Ontario Nurses’ Association Respondent (Respondent)

and

Service Employees International Union, Local 1 Respondent (Respondent)

Counsel: David M. Golden and Marco P. Falco, for the appellants Participating Nursing Homes Paul J.J. Cavalluzzo, Adrienne Telford and Lara Koerner Yeo, for the respondent Service Employees International Union, Local 1 Janet Borowy, Danielle Bisnar, and Andrea Sobko, for the respondent Ontario Nurses’ Association Lindsay Lawrence and Aaron Hart, for the respondent, the Pay Equity Hearings Tribunal Fay Faraday, for the intervener, the Equal Pay Coalition

Heard: October 6 and 7, 2020 by video conference

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 ONSC 2772, affirming 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.

Benotto J.A.:

[1] The Participating Nursing Homes (“PNH”) appeal the decision of the Divisional Court upholding, in part, a decision of the Pay Equity Hearings Tribunal. The Tribunal directed the parties to negotiate a gender-neutral comparison system (“GNCS”) for maintaining pay equity. The PNH seek a declaration that the Pay Equity Act, R.S.O. 1990, c. P.7 (the “Act”) does not require them to further negotiate their maintenance obligation with the respondents by tying the maintenance obligation to how the proxy employer historically valued “male” jobs in its establishment in 1994. For the following reasons – to be read with the companion appeal released concurrently – I would dismiss the appeal.

Background

[2] The PNH are employers who operate up to 143 nursing homes in Ontario. The Ontario Nurses’ Association (“ONA”) is the bargaining agent representing about 2,100 registered nurses and allied health professionals working at nursing homes across the province. The Service Employees International Union, Local 1 (“SEIU”) is the bargaining agent representing a range of health care workers at the PNH, including registered practical nurses, personal support workers, health care aides, and dietary, housekeeping, and recreational aides. (Collectively, the ONA and the SEIU are referred to as “the Unions”.)

[3] Employment in the nursing home sector is predominantly female. Consequently, the proxy methodology for establishing pay equity applies. The proxy method involves a comparison between a key female job class in one employer’s establishment and an analogous female job class in a different (“proxy”) employer’s establishment where pay equity has already been established by way of comparison with a male job class.

[4] The female job class from the proxy employer is valued pursuant to a GNCS and the relationship between value and compensation is thus determined. Pay equity is achieved for the key female job class by adjusting its compensation so that the same value/compensation relationship exists for both the key female job class and the proxy female job class. Pay equity is then achieved for the rest of the seeking employer’s job classes by comparison to the key female job classes.

[5] The Act requires every seeking employer to prepare a pay equity plan including a description of the GNCS used for the purposes of making the comparisons.

[6] In 1995, the PNH and the Unions negotiated and executed a pay equity plan for the entire nursing home sector using as the proxy employer “Unionized Municipal Homes for the Aged Across Ontario” (“Municipal Homes”) and designating health care aides as the seeking employer’s key female job class and the proxy female job class. They agreed that a total weighted average adjustment of $1.50 per hour would achieve pay equity for the health care aides in the employ of the PNH and agreed upon a schedule for implementing the required increase for all job classes. The parties did not agree on a GNCS and did not use a GNCS to evaluate job classes in the PNH and proxy female job classes. The various adjustments contemplated by the pay equity plan were implemented, and by 2005 pay equity had been established.

[7] The issue then became how to maintain pay equity as required by the Act.

[8] The Tribunal directed that the parties negotiate a GNCS for these reasons:

Although the $1.50 Plan may have achieved pay equity, it did so without applying a GNCS. So long as the skill, effort, responsibility and working conditions of the female job classes in the Homes remained unchanged, and they received the same percentage compensation increases, the absence of a GNCS had no impact on pay equity maintenance. We have already referred to the uncontradicted evidence before us that there have been significant changes in the clientele and the duties performed in the Homes that may well impact on the value of the job classes. Those changes make the $1.50 Plan inappropriate because the pay equity consequence of them can only be ascertained by evaluating the job information using a GNCS, which the Proxy Plans lack. In the unionized environment the selection of a GNCS and its application are matters that the Act contemplates will be negotiated between the employer and the union.

Pursuant to our authority under section 25(2)(g) of the Act, the parties are directed to negotiate and endeavor to agree on an amendment to the $1.50 Plan to stipulate a GNCS, and to apply that GNCS to determine whether any maintenance adjustments are required.

[9] The Tribunal’s decision was upheld by the Divisional Court.

[10] The PNH submit that the Tribunal’s decision was unreasonable because it will “forever require the PNHs to base their pay equity compensation” on another employer.

[11] I disagree.

[12] First, the Tribunal clearly has the authority to require compliance with the Act. A GNCS was neither negotiated nor applied as part of the 1995 proxy comparison process. The parties accordingly did not determine the gender-neutral value of the work performed by the female job classes at either the PNH or Municipal Homes. It was the obligation of the employer to prepare a pay equity plan in compliance with the Act. It did not do so, and it was within the Tribunal’s power to direct it to comply. Section 25(2)(g) provides that the Tribunal “may order a party to a proceeding to take such action or refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances.”

[13] Second, for the reasons set out in the companion appeal, the object of the Act requires ongoing comparison to men. When there are insufficient men in the establishment, there is reference to another employer. That is how the proxy method works. The matter was remitted to the Tribunal to specify what procedures should be used to ensure that the respondents who have established pay equity through the proxy method will continue to have access to male comparators to maintain pay equity. I would direct that the parties comply with the Tribunal’s direction, to negotiate a GNCS and determine whether any maintenance adjustments are required, in conjunction with the procedures specified by the Tribunal as a result of the decision in the companion appeal.

[14] I would dismiss the appeal and invite submissions as to costs (limited to 5 pages) within 15 days of the release of this decision.

“M.L. Benotto J.A.”

“I agree David Brown J.A.”

“I agree “B. Zarnett J.A.”

Huscroft J.A. (Concurring):

[15] I conclude that the Tribunal's decision is reasonable as a whole, including the order that the parties negotiate a GNCS. I would dismiss the appeal for the reasons set out in the companion appeal.

Released: March 09, 2021 “GRS”

“Grant Huscroft J.A.”

“I agree G.R. Strathy C.J.O.”