Ontario Nurses’ Association v. 10 Community Care Access Centres, 2021 ONSC 5348

CITATION: Ontario Nurses’ Association v. 10 Community Care Access Centres, 2021 ONSC 5348

DIVISIONAL COURT FILE NO.: 720/19

DATE: 20210921

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. Smith, Lederer, Kristjanson JJ.

APPLICATION UNDER The Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, as amended and Rule 68 of the Rules of Civil Procedure

AND IN THE MATTER OF A DECISION OF THE PAY EQUITY HEARINGS TRIBUNAL DATED SEPTEMBER 10, 2019

BETWEEN:

ONTARIO NURSES’ ASSOCIATION

Applicant

– and –

10 COMMUNITY CARE ACCESS CENTRES (Central; Erie St Claire; Waterloo-Wellington; Central East; Hamilton Niagara Haldimand Brant; North East; North Simcoe Muskoka; North West; South East; South West) and THE PAY EQUITY HEARINGS TRIBUNAL

Respondents

Janet Borowy, Niiti Simmonds and Andrea Sobko, for the Applicant

Lisa Compagnone and Thomas Ayers, for the Respondent, 10 Community Care Access Centres

Lindsay Lawrence, for the Respondent, Pay Equity Hearings Tribunal

Fay Faraday, for the Intervenor (Equal Pay Coalition)

Hayley Pitcher, for the Intervenor (Attorney General of Ontario)

HEARD: May 12, 2021

Lederer J.

Introduction

[1] This is an application for judicial review of a decision made by the Pay Equity Hearings Tribunal.[^1] The Pay Equity Act[^2] was enacted to address “gender discrimination in the compensation of employees employed in female job classes”.[^3] The Pay Equity Hearings Tribunal was established by the legislation.[^4] It is one of two parts of the Pay Equity Commission (the other being the Pay Equity Office)[^5] set up to administer and where required act in furtherance of implementing the procedures put in place through the Pay Equity Act such that work places, in Ontario, will achieve pay equity and the underlying policy of ending this form of discrimination. As its name implies the Pay Equity Hearings Tribunal is instructed to conduct hearings directed to the resolution of disputes between employees and employers as they navigate the process of establishing and, as in this case, maintaining pay equity.[^6] While no specific reference was made in the record or the submissions of counsel, it seems self-evident that the Tribunal exists, in part, to see that the process of moving to pay equity is a fair, equitable and expeditious one. Delay in resolving these disputes could be interpreted as demonstrating a lack of commitment to dealing with the overall problem. The significance of the role of the Pay Equity Hearings Tribunal in moving pay equity concerns through the process and procedures set out in the Pay Equity Act is demonstrated by the comprehensive nature of its authority:

30 (1) The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes.

The importance of the role of the Tribunal is confirmed by the breadth of its powers.[^7]

[2] The parties see the issue raised by this judicial review as concerning whether a union, as the representative of a female job class, in the context of seeking to maintain pay equity, has a right to negotiate the resolution of the issue. This is too narrow a perspective. The case requires an appreciation of the process as a whole.

Background

[3] The Applicant, the Ontario Nurses’ Association is a trade union. It is the bargaining agent that represents registered nurses and other healthcare professionals employed by each of the 10 Community Care Access Centres that are the respondents. The Community Care Access Centres provide access to government-funded home care and community services as well as placement in long-term care facilities. They have been and remain almost exclusively staffed by women.

[4] Over time the structure through which the services provided by Community Care Access Centres are delivered has been reorganized. Pay equity was established and then carried forward into the changed structure. Beginning in 1980 home care and placement services were provided by 74 home care and placement coordinated programs. Generally, home care was the responsibility of case managers employed primarily by Public Health Units organized within municipal governments. Placement services were carried out by agencies of municipal government and non-profit entities. During this period, in workplaces where male job classes were available, pay equity plans were established by comparing pay rates for female and male job classes to determine classes of comparable value.

[5] Between 1996 and 1998, home care and placement services were consolidated into 43 Community Care Access Centres. The pay equity plans along with the existing collective agreements were transferred to the newly created Community Care Access Centres. The internal male job class comparators that had existed did not transfer and, accordingly, the Community Care Access Centres became, and, as already noted, remain, female-dominated workplaces. In the absence of applicable male comparators, the existing pay equity plans were no longer appropriate. As the legislation allows, in workplaces that lacked internal male comparators, a proxy method of comparison is to be utilized. This involves comparing female job classes to female job classes in other employers (proxy employers) where male comparators had been available and used to implement pay equity. Following the establishment of the Community Care Access Centres, new pay equity plans were developed relying on the proxy comparison method. These pay equity plans were approved and fully implemented. Pay equity was achieved for the female job classes employed in the Community Care Access Centres.

[6] In 2006, 14 Local Health Integration Networks were created which, among other responsibilities, were required to allocate and provide funding to health service providers in accordance with provincial priorities. Effective January 1, 2007, 42 Community Care Access Centres[^8] were consolidated to 14, each of which was aligned with the geographic boundaries of one of the 14 Local Health Integration Networks. As with the prior change, the Ontario Nurses’ Association believed the existing Pay Equity Plans were no longer appropriate. On behalf of the employees of the 10 Community Care Access Centres it represents, the Ontario Nurses’ Association sought to negotiate new ones. Meetings were held. At the last of the three meetings (October 2, 2012)[^9] a consultant to the 10 Community Care Access Centres stated that they were not obligated to bargain the maintenance of pay equity plans with the Ontario Nurses’ Association.[^10] In the face of this position, the Ontario Nurses’ Association wrote to each of the 10 Community Care Access Centres expressing the view that a new pay equity plan was required for each of them and that the Ontario Nurses’ Association wished to enter into negotiations.[^11] Each of the 10 Community Care Access Centres replied confirming the position that they were not required to negotiate new pay equity plans.[^12]

[7] On June 13, 2013, the Ontario Nurses’ Association filed complaints with “Review Services,” part of the Pay Equity Office, concerning each of the 10 Community Care Access Centres, alleging they had failed to maintain pay equity.[^13] There is no reference in any of the factums filed, the Agreed Statement of Facts, the Decision of the Pay Equity Hearings Tribunal or the Orders released by the Review Officer as to what he did in undertaking an investigation of the complaints. The result was 10 Orders, one in respect of each of the 10 Community Care Access Centres,[^14] each dated December 18, 2015, in which the Review Officer determined that “due to the reorganization and restructuring of bargaining units and the creation of new job classes and new bargaining units, the Employer has not maintained pay equity for all female classes.”[^15] The Review Officer went on to provide for the manner in which the apparent deficiency was to be remedied:

14. The Review Officer found that the Employer must maintain pay equity using the proxy method of comparison.

15. The Review Officer ordered that the Employer to evaluate [sic] the key female classes and non-key female classes using the proxy method of comparison and disclose the results to the Review Officer and the union.[^16]

[8] Thereafter, the 10 Community Care Access Centres proceeded unilaterally with pay equity maintenance activities. Following the issuance of the 10 Orders by the Review Officer, they identified a Gender-Neutral Comparison System (“GNSC”), gathered job information, analyzed the job information using the GNSC, and provisionally identified points and weightings to the job classes. Once the respondents had completed their work, all of this information was provided to the Ontario Nurses’ Association. The Orders of the Review Officer required that this work be done within 90 days of the Orders being received.[^17] No party has advanced the claim that the 10 Community Care Access Centres have failed to comply with this aspect of the Orders made by the Review Officer.

[9] However, the Review Officer went further. He found that in furtherance of maintaining pay equity, once established, the 10 Community Care Access Centres (the “employers”) were not required to negotiate with the Ontario Nurses’ Association (the “union”).[^18] It is this finding that the Ontario Nurses’ Association disputes and which it requested be heard and considered by the Pay Equity Hearings Tribunal.[^19] The Ontario Nurses’ Association, on behalf of each of the 10 Community Care Access Centres, delivered Notices of Application to the Pay Equity Hearings Tribunal. Each of the 10 applications included, as Schedule C, a statement of the issue in dispute and the facts and events important to the position being taken. For the 10 applications Schedule C is the same and includes the following three paragraphs demonstrative of the issue being raised:

11. ONA makes this Application to the Tribunal in accordance with s. 23(4) and 25(1)(a) of the Pay Equity Act (Act) and requests the Tribunal revoke the Review Officer’s Orders, solely and specifically as it relates to the finding that the Employer is not required to negotiate with ONA to maintain pay equity from January 1, 2007.

12. ONA does not dispute the Tribunal’s order that the Employers have not maintained pay equity for all job classes. It is ONA’s position that the Review Officer’s decision that the Union does not need to be involved in negotiating pay equity maintenance is based on errors of law.

13. While the Notices of Decision make findings concerning the three issues identified above, the Union seeks to proceed in this Application only with one issue: Specifically, the Union’s involvement to negotiate pay equity pursuant to sections 13.1 and 14.1 of the Act.[^20]

[10] The Pay Equity Hearings Tribunal dealt with this matter from the perspective that the central question for it to determine was whether, in considering the maintenance of pay equity, the employer was obliged to negotiate with a recognized bargaining agent (a trade union).[^21]

[11] The Pay Equity Hearings Tribunal accepted that the Pay Equity Act is remedial legislation to be liberally interpreted consistent with its underlying purpose and policy foundation. It distinguished between the process required for the establishment of pay equity which includes negotiations with any representative trade union; and the maintenance of pay equity, which, the Tribunal found, does not. The Pay Equity Hearings Tribunal determined that maintenance, as described in the Act, is not a joint or collaborative undertaking, it is solely the responsibility of the employer. Those sections of the Act which point to negotiations where circumstances have changed or a sale has taken place reflect on something that is not maintenance but rather are demonstrative of substantive and underlying change. As understood by the Pay Equity Hearings Tribunal, the failure to require an employer to negotiate maintenance with a representative trade union does not transgress on the freedom of association as protected through the Charter of Rights and Freedoms.

[12] The Pay Equity Hearings Tribunal dismissed the applications brought forward by the Ontario Nurses’ Association and upheld the finding of the Review Officer that the 10 Community Care Access Centres (the employers) are not required to negotiate pay equity maintenance. It is this determination which is the subject of this judicial review.

Standard of Review

[13] This is a judicial review. The parties agree that the standard of review is reasonableness. Pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov[^22] a reasonableness review focuses on both the decision-making process and its outcomes. When conducting a reasonableness review, the court must begin its inquiry by examining the reasons of the administrative decision maker with “respectful attention”, seeking to understand the reasoning process followed by the decision maker.[^23] The reasons should be read holistically and contextually.[^24] The reviewing court must ask “whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”[^25]A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”[^26]The reviewing court must be satisfied that the decision does not have a “fatal flaw” in its “overarching logic” and that “there is [a] line of analysis within given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”.[^27]

The Decision of the Tribunal

[14] Vavilov instructs us that a review of a decision of an administrative tribunal begins with (is to be founded on) an inquiry into its reasons. The Pay Equity Hearings Tribunal understood that the issue was one of statutory interpretation. It conducted a comprehensive examination of the factors that contribute to a consideration of whether there is within the Pay Equity Act, the relevant caselaw and the Charter of Rights and Freedoms a justification for finding that any bargaining agent, representing a group of affected female employees, has a right to negotiate with the employer in circumstances where pay equity, having been established, was not maintained. The Tribunal identified and considered the provisions that that dealt with the responsibility for maintenance of pay equity, the role of bargaining agents, those provisions that contemplate negotiations and those that account for circumstances where pay equity may not be maintained. The Tribunal considered and distinguished caselaw that might apply. It considered submissions to the effect that the Charter of Rights and Freedoms, properly considered, would contribute to a finding that the supposed right was included in a reasoned understanding of the legislation and caselaw.

Analysis Part I (the plain reading of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html))

[15] I begin with the accepted idea that the Pay Equity Act is remedial legislation that should be interpreted liberally to respond to its purpose. This is the purpose demonstrated through the words of the statute as an expression of the intent of the legislature, not as the parties believe the social redress being sought can best be obtained. The Ontario Nurses’ Association submits that the “legislative intent [is] for pay equity to be a self-managed process between employers and trade unions achieved via good faith mandatory bargaining”.[^28] This implies a joint and shared responsibility. This may be desirable from the union’s perspective. As it sees it:

The purpose of pay equity maintenance is to ensure that discriminatory wage gaps do not re-emerge following the initial achievement of pay equity in an establishment. This analysis requires a periodic, but consistent, comparison of the value of work of the female job classes to male comparators to enable pay equity compliance to continue.[^29]

[16] In making this point the Ontario Nurses’ Association relies on three cases all of which agree that consistent review is necessary but none of which suggest that this is a responsibility shared by employers and, where they are involved, trade unions. To the contrary, they each accept that the maintenance of pay equity is the responsibility of the employer.[^30] In submitting that there is a shared responsibility the Ontario Nurses’ Association relies principally on Hansard from November 19, 1985, November 24, 1986 and December 18, 1991; a Ministry of Women’s Issues Green Paper on Pay Equity from 1985 and a review of what were, at the time, proposed amendments to the Pay Equity Act by the Standing Committee on the Administration of Justice (Technical Briefing on Bill 102 (January 18, 1993)).[^31] These statements and documents may or may not review a possible legislative approach to the issue of wage disparity between men and women (discrimination) but it is the legislation ultimately enacted that provides the expression of the intent of the legislature.

[17] The Tribunal identified and relied on the relevant statutory provisions. The legislation is clear. As the Tribunal found, the responsibility to establish and maintain pay equity lies with the employer and not the union:

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

[18] As noted in the decision of the Pay Equity Hearings Tribunal there are three additional sections in the Pay Equity Act that refer to the maintaining of pay equity. Each of them refers to the “employer”, none to the “bargaining agent”[^32]:

2(3) Despite the fact that the employees of two or more employers are considered to be one establishment under subsection (1) or (2), each employer is responsible for implementing and maintaining the pay equity plan with respect to the employer’s employees.

7.1 (1) Every employer to whom Part III applies and any other employer who is directed to do so by the Pay Equity Office shall post in the employer’s workplace a notice setting out,

(a) the employer’s obligation to establish and maintain compensation practices that provide for pay equity; and

(b) the manner in which an employee may file a complaint or objection under this Act.

8(5) The requirement that an employer maintain pay equity for a female job class is subject to such limitations as may be prescribed in the regulations.

[Emphasis added]

[19] The Ontario Nurses’ Association says that it was unreasonable for the Pay Equity Hearings Tribunal to rely on the absence, in these sections, of an express right of a bargaining agent to negotiate the maintaining of pay equity, to find that this was the responsibility of employers alone. The Ontario Nurses’ Association identifies the interpretation of s. 7(1) as unreasonable because it was considered in isolation, without reference to s. 7(2):

(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1)

[20] What s. 7(2) provides is that those involved and affected are not permitted to negotiate or agree to contract out of the obligation to achieve pay equity as between similar male and female job classes. This may, as the Ontario Nurses’ Association suggests, impose a positive obligation not to undermine the establishment or maintenance of pay equity. It may, in effect, require the bargaining agent to play a role in ensuring that pay equity is maintained. What it does not do is impose an obligation on the employer or provide to the bargaining agent a right to collectively bargain where that supposed obligation or right is not otherwise provided for by the legislation. The bargaining referred to in s. 7(2) is not the process of establishing or maintaining pay equity. The reference is to the process of collectively bargaining compensation practices in the Collective Agreement which is or will be the foundation of the relationship between the employer and the union:

The only impact of certification, once pay equity has been established as in this case, is that the employer and the bargaining agent in their upcoming negotiations will have to abide by subsection7(2) of the Act, and are jointly obliged not to bargain or agree to any compensation practices that would disrupt the already provided for pay equity in the employer's establishment.[^33]

The Union's position also fails to take into account the breadth of the Employer's responsibilities for pay equity. The Employer must establish and maintain pay equity for female workers in each of its bargaining units and non-union unit. The Employer, having identified the relative ranking of male and female job classes, must now administer a pay policy free of gender bias. To do so requires that relative values be used to define and adhere to an equitable pay policy line encompassing all jobs. The Employer must accomplish this task within the limitations of its financial resources available for all jobs within its establishment. That is no doubt in part why subsection 7(2) exists; it is to bar those compensation practices which prevent the Employer from complying with the legislation.[^34]

[Emphasis added]

[21] In proposing that the added consideration of s. 7(2) demonstrated that it was unreasonable for the Tribunal to find there was no express right of a bargaining agent to negotiate the maintaining of pay equity, the Ontario Nurses’ Association relied on Ontario Nurses’ Association v. St. Joseph’s Villa.^35 In that case a pay equity plan was established. Only after that had taken place, the Ontario Nurses’ Association became the bargaining agent for the nurses employed and covered by the plan. The Ontario Nurses’ Association sought to negotiate a new plan for the employees it represented (the nurses). The employer refused. The Ontario Nurses’ Association made a written application to the Review Services Branch of the Pay Equity Commission alleging that the Employer had contravened the Act by refusing to negotiate. The matter found its way to the Pay Equity Hearings Tribunal. It took note of s. 7(2) but it refused to order that a new plan be negotiated:

We are not ordering that a new plan be negotiated however: we are ordering that the Plan be split.[^36]

We decline to order the Employer to negotiate a plan with ONA. The Plan was prepared and posted in apparent compliance with the Act and none of the employees now represented by ONA, who were then capable of making individual objections to the Plan, did so. It therefore is deemed approved. We see no reason to order that a deemed approved plan to which no one has objected be re-opened or re-done.[^37]

[22] The Tribunal recognized, as the legislation provides, that responsibility to maintain pay equity, ultimately, rests with the employer:

The establishment and maintenance of pay equity is clearly an employer responsibility and obligation.[^38]

That entity, designated in the Pay Equity Act as the employer, is ultimately responsible to see that the compensation practices he implements provide for pay equity for all groups of employees in his establishment.[^39]

[23] Further to its proposition that it was unreasonable not to understand that the Pay Equity Act included a requirement that the maintenance of pay equity be negotiated, the Ontario Nurses’ Association relied on other cases. One of them was Welland County General Hospital v. S.E.I.T., Local 204.^40 That case does not help establish the premise. As part to of the negotiations for “a renewal collective agreement” the parties had agreed to pay the single member of a male job class (“carpenter”) wages in excess of the rate described in the collective agreement. This rate was established in respect of the individual involved (it was referred to as the “Reid Rate”). The setting of this rate was the subject of a Letter of Understanding between the union and the employer but it was not “printed” as part of the Collective Agreement or any successor agreement. The letter was dated November 26, 1987. Three years later, on June 27, 1990 the union and the employer concluded pay equity plans. Two female job classes were identified as performing work of equal or comparable value to that of “carpenter”. The only incumbent was John Reid. The wage rate utilized in the pay equity plan was the rate referred to in the collective agreement, not the “Reid Rate.”

[24] This was not the only problem. On January 17, 1991, the union and the employer entered into a Memorandum of Agreement respecting the renewal of the 1987-89 Collective Agreement for the period October 11, 1989 to October 10, 1991. In doing so they agreed to accept the arbitration award between the union and another hospital. In so doing they agreed to a percentage increase for the comparator male class. Applying the same percentage to the applicable female job classes would not assist in furthering pay equity, it would detract from it. Applying a percentage would widen the gap that already existed. At the same time, the union sought a $2.00 increase for a group of male job classes (including “carpenter”). The employer resisted, in part relying on its impact on pay equity. The issue was made the subject of an interest arbitration. Adjustments were made. The arbitrator found that pay equity was not an impediment to “wage adjustments for male comparator jobs that are otherwise justifiable”. This too would widen the gap that already existed between the job rates for the applicable female job classes and the job rate for the carpenter (John Reid).

[25] No one disputed that the widening gap had to be redressed. The substantive issue was whether these concerns represented breaches of ss. 7(2) of the Pay Equity Act, whether the union was complicit in the breach and, on that basis, whether the union should be required to contribute to the cost of remedying the resulting increased imbalance. The Pay Equity Hearings Tribunal found there was no breach and that it was for the employer to fill the widening of the gap. The Pay Equity Hearings Tribunal did note that the negotiation of pay equity plans and the negotiations of collective agreements are two separate processes. The initial arriving at a pay equity plan is the subject of negotiation. There is no reference to a right in the union to negotiations where pay equity has not been maintained.

[26] Still further to its submission that it was unreasonable for the Pay Equity Hearings Tribunal to find that the Pay Equity Act “does not mention” an express right of a bargaining agent to negotiate maintaining pay equity the union relies on York Region Board of Education v. Canadian Union of Public Employees, Local 1734.[^41] The central issue was the effect of s. 8(2) of the Pay Equity Act. The employer was required to implement pay equity. Section 8(2) provides for an exception:

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.

[27] The employer argued that the exception should apply. The Pay Equity Hearings Tribunal found that it did not. The Employer went on to submit that if the exception did not apply then, as argued in Welland County General Hospital v. S.E.I.T., Local 204, the union was complicit in the failure to maintain pay equity and, consequently, should be held jointly responsible for redressing that failure implying a direct responsibility in the union. The Tribunal did not agree.

[28] The Pay Equity Hearings Tribunal did not say anything that would contribute to the idea that negotiation was intrinsic to ensuring the maintaining of pay equity. To the contrary:

The establishment of pay equity is not in issue in this case: we are concerned solely with its maintenance. The Act clearly requires that pay equity, once established, must be maintained. Under s. 7(1) of the Act, employers bear primary responsibility for both the establishing and the maintaining of pay equity. Keeping in mind the language of s. 7(1) and the fact that this is pro-active legislation, it appears to us that the statutory presumption is that pay equity will be maintained automatically. In other words, an employee or bargaining agent does not need to complain or demand to negotiate in order to trigger the employer's obligation to maintain pay equity. This makes a great deal of sense given the potential information asymmetries as between the employer and the employees or bargaining agent.[^42]

[29] The Ontario Nurses’ Association also relies on Oakwood Retirement Communities Inc. v. SEIU, Local 1 Canada[^43]. The employer was in the business of developing and operating both nursing and retirement homes. The case dealt with the latter. It was a business to which Part 1 of the Pay Equity Act applied but Part 2 did not. The significance of this is that the employer was required to be pay equity compliant but was not required to have a pay equity plan.[^44] In preparation for opening its first home it undertook an internal analysis of its prospective employees and retained and worked with a consultant knowledgeable in the area of pay equity. It signed a voluntary recognition agreement with a union. The union and the employer agreed that pay equity had been achieved and attached an agreement to that effect to the collective agreements. Over time the union involved was displaced. The new union wanted to review the pay equity analysis that had been done. A Review Officer was required to investigate and issued an Order as to the steps to be taken to bring the employer into compliance. In particular, she ordered that negotiations be carried out as a result of what she found to have been the incorrect assessment of the gender dominance of several job classes. The matter was taken up by the Pay Equity Hearings Tribunal. It concluded that pay equity had never been achieved and made orders as to what should be done to bring the employer into compliance. However, it did not sustain the order that the parties negotiate. As a Part 1 employer (to which Part 2 of the Pay Equity Act did not apply) no such negotiations were required:

I do not accept the apparent assumption underlying the remainder of the Order that the parties are obligated to negotiate the achievement of pay equity. In my view, nothing in Part I compels such a result. Part II of the Act, which has no application to Oakwood, specifically mandates negotiations between trade unions and employers concerning gender neutral comparison systems, pay equity plans, and the amendment of pay equity plans (see sections 14 and 14.1). Parts III.1 and III.2, which also do not apply to Oakwood, incorporate the bargaining provisions under sections 14 with necessary modification (see section 21.8 under Part III.1 and section 21.20 under Part III.2). There is no equivalent bargaining regimen under Part I. However, Part I contemplates that an employer may need to obtain the agreement of the bargaining agent on certain discrete aspects of the pay equity process, where applicable….

…Whatever steps an employer may take to achieve pay equity in a bargaining unit must necessarily be readily transparent to the bargaining agent so that it can assure itself it is not sanctioning compensation practices that run afoul of the Act. But Part I does not envisage the same range of negotiations between employers and trade unions contemplated by other Parts of the Act.[^45]

[Emphasis added]

[30] I point out that this did not concern maintenance of pay equity but rather its establishment which was found not to have been justified or demonstrated. As such that case is not directly relevant to the issue being decided in this one. It does nothing to suggest some underlying overall requirement that the Pay Equity Act allows that a union can compel negotiations as part of any shared responsibility to ensure pay equity once achieved, be maintained. It does not assist in the submission that the finding made by the Pay Equity Hearings Tribunal to the contrary was unreasonable. This is not to say that the parties cannot or should not voluntarily engage in such negotiations.[^46] In Oakwood Retirement Communities Inc. v. SEIU, Local 1 Canada the Pay Equity Hearings Tribunal ordered that the employer had ninety days from the date of its decision to achieve pay equity.[^47] To my mind this is a demonstration of the understanding and acceptance by the Tribunal that a proper response to this form of discrimination (inequitable pay based on gender) requires expedition.

[31] I turn to one further case relied on by the Ontario Nurses’ Association. In City of Windsor v. Moor[^48] the City provided the public with recreational services. Shirley D. Moor was employed, by the City as a Facility Attendant. Pay equity had been achieved. There was a pay equity plan that had been approved pursuant to a deeming provision found in the Pay Equity Act. The collective agreement between the parties included a provision that foresaw the possibility of the City, as the employer, seeking to contract out work being performed by members of the bargaining unit, albeit on notice and after discussion with the union. The City was in the process of constructing a new aquatic centre. It notified the union that, without appropriate cost savings, it would consider contracting out the work associated with the centre. The union stood to lose 60 jobs. It made three proposals, the third of which was accepted by the City. As a result, the pay of Shirley Moor was reduced by ($18.14 minus $16.48) $1.66 per hour.

[32] As stated by the Pay Equity Hearings Tribunal the focus was on “whether, in implementing a wage grid, an employer can reduce the wages of an incumbent employee who is receiving the pay equity job rate of a job classification.” The Tribunal found that an employer cannot do so.[^49] The reduction in the wage rate of Shirley D. Moor constituted a violation of ss. 7(1) and 7(2) of the Pay Equity Act.[^50]. The employer relied on the exception to pay equity as provided by s. 8(2) of the Pay Equity Act. The Pay Equity Hearings Tribunal found that it did not apply. It referenced differences in bargaining strength as between male job classes and female job classes not differences in the bargaining strength of the female job class’s bargaining agent and the employer.[^51] The Tribunal was asked by the City to require that the union as a participant in the breach of s. 7, contribute to the wages that were outstanding. In part, relying on Welland County General Hospital v. S.E.I.T., Local 204, the Pay Equity Hearings Tribunal refused to do so.[^52] In coming to this determination, the Tribunal confirmed that it is the employer’s responsibility to make the necessary adjustments to maintain pay equity:

…the relevant language only contemplates ordering “adjustments in compensation.” Throughout the Act, it is clear that employers alone are responsible for making pay equity adjustments.[^53]

[Emphasis added]

[33] What is the point in reviewing these cases? Neither the statutory provisions, nor the cases relied on by the Ontario Nurses’ Association support the submission that it was unreasonable for the Pay Equity Hearings Tribunal to find that the Act “does not require that employers in unionized workplaces are obligated to negotiate the maintenance of pay equity.[^54]

Analysis Part II (does [section 11](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html) of the [Pay Equity Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html) apply?)

[34] There is no doubt and no controversy as to the application of Part I of the Pay Equity Act to the 10 Community Care Centres. They are required to achieve pay equity (see s. 7(1) and cannot, within the bargaining undertaken in furtherance of coming to a collective agreement with the Ontario Nurses’ Association, agree to any provision which would breach that obligation (see s. 7(2)). The question asked of the Pay Equity Hearings Tribunal was whether Part II of the Act applied. The 10 Community Care Access Centres said it did not. This is because as of July 1, 1993 they did not exist and so had no employees. This submission relies on s 11 of the Pay Equity Act. Subsection 11(1) establishes to whom Part II of the legislation applies:

11 (1) This Part applies to all employers in the public sector, all employers in the private sector who, on the effective date, employ 100 or more employees and those employers in the private sector who post a notice under section 20.

[35] It was not disputed that, on its face, this would apply to the 10 Community Care Access Centres; however, section 11(2) provides an exemption:

(2) This Part does not apply to an employer who does not have employees on the effective date.

[36] The “effective date” is a term defined by the legislation at s. 1(1) as January 1, 1988. This would apply to the 10 Community Care Centres but the exception was narrowed by an amendment to the legislation which added s. 11(3):

(3) Despite subsection (2), sections 13.1, 14.1 and 14.2 apply to public sector employers that did not have employees on the effective date but that had employees on July 1, 1993.

[37] As will become apparent, the sections mentioned are pertinent to this situation. It is on this basis that the 10 Community Care Access Centres submitted that since they did not exist on July 1, 1993, it followed that they had no employees at that time. Thus, despite the fact that the situation changed, s. 11(3) still operated to exempt them from Part II, in general, and the specific sections it referenced in particular. In considering this submission the Pay Equity Hearings Tribunal observed:

In our view subsection 11(3) was not designed to do what the Employers suggest, i.e. forever exempt public sector employers, such as the respondents, who did not even exist on July 1, 1993 from the effects of a post-July 1, 1993 sale of business or change in circumstance rendering a pay equity plan no longer appropriate. Section 11 simply clarifies that employers without employees at certain stages in the life of the Act (at its inception on January 1, 1988 and on the date of the first amendment to the Act, July 1, 1993) were not subject to Part II. The interpretation urged by the Respondents – that an employer without employees at those points in time are forever exempt from Part II - would defeat the rights of individuals who initially benefitted under the Act from the continued enjoyment of those benefits following a sale of business or where changed circumstances render the pay equity plan no longer appropriate.[^55]

[38] Even so, the Pay Equity Hearings Tribunal did not decide the issue of whether the exemption applied. It was not necessary:

Ultimately, we find it unnecessary to decide whether the Employers’ argument concerning subsection 11(3) is correct. That is because we are persuaded by the Respondents’ primary position that they were not statutorily obligated to bargain pay equity maintenance with ONA, for the reasons that follow.[^56]

[39] In other words, the analysis was carried by the Pay Equity Hearings Tribunal out on the presumption that the sections noted in s. 11(3) do apply in the circumstances that were before it and are now before this court.

Analysis Part III (the right to negotiate and the process as a whole)

[40] Part II, if it applies, as the Pay Equity Hearings Tribunal’s decision suggests it may, imposes specific duties and responsibilities on an employer, for example:

• the employer alone is required to post pay equity documents in the workplace (s.7.1, 14(4), 16(3), s. 17(2), s. 21(7), s. 32(2))
• it is the employer that is tasked with making comparisons between job classes under the gender-neutral comparison system, and
• the employer is responsible for paying pay equity adjustments (s.14(5), s. 16(5), s. 17(3), s. 21(10)).[^57]

[41] Part II, if it applies, expressly contemplates negotiations between employers and bargaining agents on issues it identifies:

• a gender-neutral comparison system (subsection 14(2)(a));
• a pay equity plan (subsection 14(2)(b));
• the composition of the employer’s establishment (subsection 14(3)(a));
• whether a job class is a male or a female job class (subsection 14(3)(b);
• an amended pay equity plan due to changed circumstances that render the initial pay equity plan no longer appropriate (subsection 14.1);
• a new pay equity plan following a sale of business if as a result of the sale the prior pay equity plan(s) is no longer appropriate (subsection 13.1(2)(a); and
• a replacement schedule of compensation adjustments for achieving pay equity (subsection 13(7.2)).[^58]

[Emphasis added]

[42] These subsections each specifically refer to an obligation to “negotiate”. There is nothing that provides for negotiations respecting the maintenance of pay equity. There are circumstances where the legislation, in the face of change, may allow for negotiation. The first is where there are “changed circumstances” (section 14.1) and the second where there is a sale of the business (subsection 13.1(2)(a)). There is, in both cases a precondition. They are similar but not the same. In the case of changed circumstances, one of the parties, either the employer or the bargaining agent must be of the view that because of the “changed circumstances” the existing pay equity plans are no longer appropriate[^59]. In the case of a sale, if because of the sale any prior pay equity plan (“the seller’s plan or the purchaser’s plan”), is no longer appropriate negotiations are required.

[43] The Ontario Nurses’ Association insists that in the circumstances of this case it has a right to compel the employers to negotiate. In the case of section 14.1 (changed circumstances) can there be meaningful negotiations where the parties do not agree (do not share “the view”) that the existing pay equity plan or plans are inappropriate? Having regard to section 13.1 and, in particular subsection 13.1(2)(a) (sale), the Ontario Nurses’ Association posits that the integration of health services is, in effect, the sale of the former to the new integrated service.[^60] As the Ontario Nurses’ Association understands it, the amalgamations from 42 to 14 Community Care Access Centres constitutes such an integration.[^61] In such a case, the sale has to be the cause of the pre-existing pay equity plans being “no longer appropriate” before negotiations are required. The same question remains. What happens if the parties do not agree that the pay equity plans, in place, are “no longer appropriate”? I will return to this question later in these reasons.

[44] Before going on, I wish to step back and consider the overall context in which these matters proceed. The Pay Equity Act is set against a ubiquitous form of discrimination and demonstrates our collective effort to respond to it. It is quasi-constitutional human rights legislation directed at redressing systemic gender discrimination. As such, it does not just touch the parties. It implements a value that is fundamental to our society and reflects on us all. The Pay Equity Act demonstrates our collective belief that this discrimination is wrong and should be rectified. As perceived by the Ontario Nurses’ Association this understanding demonstrates a context calling for obligatory negotiations. Contrary to a statement made by the Pay Equity Hearings Tribunal referencing the decision of this Court in Canadian Union of Public Employees, Local 1999 v. Lakeridge Health Corp.[^62] the Ontario Nurses’ Association submits that such a requirement would further the purpose of the Act to facilitate a collaborative approach by employers and trade unions to maintain pay equity.[^63] The statutory interpretation applied by the Pay Equity Hearings Tribunal was “contrary to the express human rights and quasi-constitutional purpose of the Pay Equity Act because it enfeebled the role of a trade union and blunted mandatory bargaining as a key remedial mechanism in unionized workplaces.”[^64] There is a different perspective. Labour law and labour relations, as they operate in the province of Ontario, are founded on the understanding that the relationship between employers and unionized employees is essentially oppositional, adversarial and based on confrontational processes. Collective bargaining follows this structure. Rather than facilitate resolution, it can lead to extended discussion, disagreement and disputes. This may be appropriate for a relationship between a union and employer which, at its root is a struggle for a better position within the relationship. It is not appropriate where the goal runs beyond the parties and seeks to move a broader social issue forward. The balance may lie in allowing for negotiations where the parties see the benefit but, where negotiations fail, to have it arranged so that the issue can be moved into, and determined through, an administrative process. This understanding of the context and the process has been incorporated into and recognized by:

• the legislation, section 14.1 of the Pay Equity Act deals with “changed circumstances” and directs that where after 120 days if no agreement has been reached through negotiations, the employer is required to give notice of the failure to the Commission at which point a review officer is required to investigate, effect a settlement or make an Order.[^65]
• the Orders of the Review Officer which include the following direction:

Under Section 24 (3) of the Act, I Order the Employer to, within 90 days of receipt of this Order, evaluate and compare key female job classes and non-key female job classes for pay equity using the proxy method of comparison, and to disclose to the Union and to me all documents and information relied on by the employer to maintain pay equity for the bargaining unit.[^66]

[Emphasis added]

• the decision of the Pay Equity Hearings Tribunal which notes:

ONA’s rationale for issuing its notice to bargain to the respondents was its concern that possibly wage gaps had emerged since the 2007 reorganization of the CCACs, or that changes in job content had occurred since then which required re-evaluation of the female job classes. ONA, of course, was quite entitled to communicate those concerns to the Respondents, and in the absence of any action by them, to complain to the Pay Equity Commission that the Respondents were in breach of their obligation to maintain compensation practices that provide for pay equity. This fulfills the statutory role of the bargaining agent in matters of pay equity maintenance of ensuring the ongoing provision of pay equity following its achievement in the workplace. … [^67]

[45] This approach of providing the employer and the bargaining agent the opportunity to resolve any concern but leaving it to the Pay Equity Commission in the person of the Review Officer and the Pay Equity Hearings Tribunal where they are unable to do so within a reasonable period of time is demonstrates what happened in this case.

[46] The amalgamation of the 42 Community Care Access Centres to 14 took place in 2006. It took until 2009 for the associated collective bargaining to be completed.[^68] It was only then, in 2010, that the Ontario Nurses’ Association moved to deal with pay equity. It would appear that, at that stage, none of the Community Care Access Centres had turned their minds to any potential pay equity implications arising from the 2006 amalgamations.[^69] In 2010 representatives of the Ontario Nurses’ Association wrote to the 10 Community Care Access Centres expressing the view that the existing pay equity plans were no longer appropriate and, relying on s. 14.1 of the Pay Equity Act (changed circumstances) requested that the parties enter into negotiations.[^70] The Decision of the Pay Equity Hearings Tribunal notes:

As a result of the ONA notices to bargain pay equity, the Employers’ association, the OACCAC, and ONA entered into discussions.[^71]

[47] Preliminary work was undertaken. This included efforts within the group of 10 Community Care Access Centres to collect and review the “predecessor proxy plans”.[^72] The three meetings referred to earlier in these reasons (December 17, 2010, April 26, 2011 and October 2, 2012) took place. The first was substantive, it seems there is little was evidence as to what happened at the second and at the third, the consultant to the 10 Community Care Access Centres took the position that the Centres were not obligated to negotiate new pay equity plans[^73]:

Corbett told the assembled group that, in light of a decision of a Review Officer regarding a pay equity dispute at Erie CCAC (where ONA had no bargaining rights), and in light of a case being heard at the time at the Pay Equity Hearings Tribunal involving the issue of maintenance of proxy pay equity plans in nursing

homes, the CCACs were taking the position that they were not obligated to negotiate new pay equity plans with their respective trade unions.[^74]

[Emphasis added]

[48] During November 2012 the Ontario Nurses’ Association wrote to each of the 10 Community Care Access Centres and stated the view that a new pay equity plan was indeed required for each of them and that the Ontario Nurses’ Association wished to enter into negotiations. In December 2012, each of the 10 Community Care Access Centres replied. They disagreed.[^75]

[49] What the three meetings demonstrate is that negotiations were attempted. They failed. Why is not clear. There is no further information provided as to the “pay equity dispute at Erie CCAC” and “the case being heard at the time at the Pay Equity Hearings Tribunal involving the issue of maintenance of proxy pay equity plans in nursing homes” was not identified or, what was taken from it, explained. With the failure of the negotiations, the Ontario Nurses’ Association did what the process allowed for. It filed applications with the Pay Equity Commission (“Review Services”) resulting in the investigation by, and order of, the Review Officer:

Six months later, ONA filed applications with Review Services, which resulted in the Notice of Decision described at the outset of this decision.^76

[50] That is to say that, in the absence of successful negotiations between the parties the process was removed to an administrative procedure, one leading to the hearing by the Pay Equity Hearings Tribunal. In the meantime, the 10 Community Care Access Centres carried on through the process in place:

Thereafter, the respondents proceeded unilaterally with pay equity maintenance activities, including arranging the completion of job content questionnaires and completing evaluations of job classes.[^77]

[51] The 10 Community Care Access Centres responded to the orders of the Review Officer such that there is no continuing complaint:

There is no claim by ONA in this proceeding that the respondents have failed to comply with the Notice of Decision.[^78]

[52] Treat this is as a changed circumstance or as a sale, in either case, there were negotiations, which failed. The requirements of the legislation were complied with. The matter was left to be resolved, as the Pay Equity Act foresees, by reliance on the available administrative process. Even so, the Ontario Nurses’ Association is not satisfied. It submits that the Tribunal erred. The proposition put by the Ontario Nurses’ Association was that there was evidence that “clearly established that changed circumstances had rendered the predecessor plans no longer appropriate” and that “several of these changed circumstances flowed from both [the] Review Service Orders and the Agreed Statement of Facts.” In particular the submissions of the Ontario Nurses’ Association rely on the understanding that “there were several new job classes for which no pay equity comparison had been performed” which, it is argued “clearly constituted a change in circumstances.”[^79]

[53] A review of the decision of the Pay Equity Hearings Tribunal demonstrates that it was aware of and considered the Review Service Orders and the Agreed Statement of Facts. The latter informed the facts recited in the decision and was relied on as the source of those facts for the issue the Pay Equity Hearings Tribunal was asked to determine (was there an obligation to negotiate?).[^80] The facts, as reviewed by the Pay Equity Hearings Tribunal, include a review of the reorganization of the 10 Community Care Access Centres and demonstrate that the changes made in 2006 did not require new pay equity plans. The Order of the Review Officer does not add to the understanding of the history.

[54] The substantive change was the consolidation between 1996 and 1998 of home care and placement services into 43 Community Care Access Centres. The measure, degree and nature of this change was detailed in the Agreed Statement of Facts.[^81] This was a new service model:

The report continued that the reform of Ontario’s home care sector was more than an organizational restructuring exercise. With the establishment of CCACs, came new policy directives that called for a whole new way of doing business. This included managed competition to create a standardized approach to acquiring services and a level playing field for non-profit and for-profit service provider agencies to compete for the business of delivering home care. CCACs would function primarily as purchasers and coordinators, not the providers, of direct service. Community volunteer boards of directors were appointed to govern CCACs to reaffirm the government’s commitment to client-centered service delivery reflective of community needs. Some CCACs maintain the provision of direct services.[^82]

[55] Following this change, the Ontario Nurses’ Association took steps to address pay equity concerns. Applications and Notices of Inability to Achieve Pay Equity were filed with the Pay Equity Commission. In responding to these initiating documents, some Community Care Access Centres and Review Services Officers identified the merger or sale of business as the basis for the involvement of the Pay Equity Commission. The Ontario Nurses’ Association and some of the Community Care Access Centres proceeded to negotiate proxy pay equity plans.[^83] All of which is to say that the pay equity plans in place in 2006, were the plans that had been developed for Community Care Access Centres and not some other, or the earlier, model.

[56] The reorganization of 2006 did not change the model, it was an amalgamation of 42 Community Care Access Centres into 14 to realign the service model to correspond to the Health Integration Networks that were being created.[^84]

[57] The Pay Equity Hearings Tribunal understood the substance and significance of this change:

The reorganization of the CCACs prompted a number of applications under the Public Sector Labour Relations Transition Act (“PSLRTA”) before the Ontario Labour Relations Board (“the OLRB”). Among other things, PSLRTA applies to a “health services integration” that affects the structure or existence of one or more employers or that affects the provision of programs, services or functions by the employers, including but not limited to an integration that involves a dissolution, amalgamation, division, rationalization, consolidation, transfer, merger, commencement or discontinuance. ONA was an active participant in several of those proceedings in which bargaining unit configurations and bargaining agent representation that existed in the 42 CCACs changed to one degree or another. In those proceedings, no one contested that the reorganization of the CCACs constituted health services integrations.[^85]

[58] But the Pay Equity Hearings Tribunal recognized, as a result of the evidence provided at the hearing, that the role and responsibilities of the employees did not change:

The two Case Managers who testified on behalf of ONA in this matter essentially said that their terms and conditions of work, their work functions and their caseloads did not change substantially as a result of the transition to their respective CCACs.[^86]

Based on the testimony of Mathers, the reorganization of the CCACs did not result in any immediate changes of substance in the day-to-day work of her position as Case Manager, and there was no evidence to suggest that her experience was atypical of other Case Managers. In the case of Hughes, another Case Manager, she was faced with a choice of staying with the Waterloo Wellington CCAC or moving to Wellington Dufferin CCAC, and she chose the latter. However, again, like Mathers, she continued to do the same assessments and job duties as before the reorganization, with the same terms and conditions as existed under the collective agreement that had applied to at her prior CCAC.[^87]

[59] It bears noting that all that was agreed to in the Agreed Statement of Facts with respect to new job classes is that the Ontario Nurses’ Association made allegations in that regard:

ONA alleged that since the restructuring of the CCACs in 2007 and pursuant to the Public Service Labour Relations Transitions Act, (“PSLRTA”) the Employers failed to maintain pay equity for the classes that existed prior to amalgamation and have failed to achieve pay equity for the new classes that have been created since 2007….[^88]

[Emphasis by underlining added]

[60] Expressed in this way, any new classes were not established “because of” the changed circumstances but some time after those changes were put in place. The issue of pay equity was not raised until 2010. The three meetings between the parties took place between December 17, 2010 and October 2, 2012. The Orders of the Review Officer were made on December 18, 2015 and the Application to the Pay Equity Hearings Tribunal on April 8, 2016. The Agreed Statement of Facts notes:

The period of pay equity liabilities, if any, in this dispute is January 1, 2007 to May 10, 2017, though later than May 10, 2017 for some of the Respondents based on the date they were transitioned into the Local Health Integration Networks (LHINs).[^89]

[61] Any changes made in that time frame have occurred “since 2007” perhaps well after that date. January 1, 2007 is the starting point to evaluate whether pay equity was maintained. This is different from attributing the cause of the failure of pay equity to realignment of 2006 (effective January 1, 2007).

[62] In Call-A-Services v. An Anonymous Employee^90 the Pay Equity Hearings Tribunal considered whether several changes within the Employer’s establishment constituted changed circumstances that would render the existing pay equity plan no longer appropriate. It found that, in the particular case:

• changing a job title,[^91]
• changing wage rates and duties,
• filling a job class recognized in the plan but that had until then no employee performing the role, and
• introducing a wage scale

were not changes that supported an understanding that the existing pay equity plan was inappropriate.[^92]

[63] It is important to remember that, in the case being decided, these issues have been resolved through the processes available under the Pay Equity Act. The only issue that was before the Pay Equity Hearings Tribunal and, now, this Court is “how the review [of these issues] was undertaken”:[^93]

The central question in this application for the Tribunal to determine is whether the Respondents are required to negotiate pay equity maintenance with the Union upon the Union’s request pursuant to sections 11.3, 13.1 and 14.1 of the Act.[^94]

[64] The issue is whether the 10 Community Care Access Centres were required to negotiate the maintenance of pay equity. In responding to this question, it is necessary that the parties agree that the changed circumstances are the cause of the existing pay equity plans no longer being appropriate. As reviewed below, if the parties do not agree that the existing plans are no longer appropriate the question of whether pay equity has been maintained passes from the parties who might have negotiated to the Commission and those who operate under its auspices (Review Officers and the Tribunal.[^95] As it is, the Ontario Nurses’ Association submitted that the Tribunal’s decision was unreasonable in that it found that there was “‘no evidence’ that the predecessors proxy pay equity plans were ‘no longer appropriate’”.[^96] It is apparent that the Pay Equity Hearings Tribunal reviewed the evidence to which the factum of the Ontario Nurses’ Association referred (the Agreed Statement of Facts and the Order of the Review Officer) and the testimony given by witnesses at the hearing (the references above to the case managers particularly Mathers). The decision demonstrates that the Tribunal was aware of the history and the evolution, first through the adoption of the new model and introduction of the Community Care Access Centres in 1996-1998 and, then the amalgamations and realignment of those centres that took place as of January 1, 2007. The case managers (the employees who testified) said their job had not changed. The Pay Equity Hearings Tribunal reviewed all of this information and found that there was no evidence that supported the idea that the existing pay equity plans were no longer appropriate. In the circumstance this was a decision that falls within the parameters set in Canada (Minister of Citizenship and Immigration) v. Vavilov.^97

[65] To my mind the submission made on behalf of the Ontario Nurses’ Association flows from a false presumption; being that the question of whether the existing pay equity plans are no longer appropriate can be objectively determined, that is that there is a single and correct answer that can be proved true or false if only the facts are properly understood. Where the concern is for changed circumstances, this is not an objective determination; it is subjective:

It is our view that s. 14.1(1) … provides a subjective determination when notice to bargain may be given.[^98]

[66] As such it is not examined as a purely factual finding. A subjective response cannot be proved right or wrong. It is more a matter of opinion and personal preference. “Appropriate” in its common meaning is something which is “suitable” or “compatible”. In an adversarial or oppositional context like labour relations, what is suitable or compatible to one will often not be suitable or compatible to the other. The answer to the question of whether, in a given circumstance, there should be negotiation and whether any existing pay equity plan is no longer appropriate depends on the perspective of who is providing the answer. This confirms what was said earlier in these reasons. The process is set up such that the question of appropriateness is not intended to be left to the Pay Equity Hearings Tribunal or the Court. It is for the parties to see if they can agree. Under section 14.1 (1) if either the bargaining agent or the employer is of the view that because of changed circumstances the pay equity plan for the bargaining unit is no longer appropriate it may give notice requiring the other to enter negotiations.

[67] It is understood that negotiations may not succeed. If they do not the issue moves into administrative processes that are the responsibility of the Pay Equity Commission, first in a review by a Review Officer and, second, if necessary, a hearing before the Pay Equity Hearings Tribunal. These processes are not in place to decide whether the existing plans are no longer appropriate and that negotiations are required. They are there to determine how pay equity can be established or re-established and that, by those means, our collective desire to address this form of discrimination met. That is the direction the Pay Equity Act provides to the officers who conduct the reviews:

16 (1) If the Commission,

(a) is advised by an employer or a bargaining agent that no agreement has been reached on a pay equity plan or an amendment to a pay equity plan; or

(b) receives a notice of objection to a pay equity plan for employees who are not represented by a bargaining agent or a notice of objection to an amendment of such a plan,

a review officer shall investigate the matter and endeavour to effect a settlement.

And if no settlement is arrived at:

(2) If the review officer is unable to effect a settlement as provided for in subsection (1), he or she shall by order decide all outstanding matters

[Emphasis added]

[68] Under the Pay Equity Act, what is a Review Officer empowered to do if he or she determines that, as a result of changed circumstances, any existing pay equity plan is no longer appropriate? This situation does not necessarily lead to negotiations. The authority is broader than that. It points to resolving the overall issue:

24(2.1) If a review officer is of the opinion that because of changed circumstances a pay equity plan is no longer appropriate, the officer may order the employer to amend the plan in such manner as is set out in the order or to take such steps with a view to amending the plan as are set out in the order.

[69] The Act is equally direct when the Pay Equity Hearings Tribunal becomes involved. It has a broad authority which includes a specific provision where there is a changed circumstance:

25 (2) The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,

(a) where it finds that an employer or a bargaining agent has failed to comply with Part II or III.1, may order that a review officer prepare a pay equity plan for the employer’s establishment and that the employer and the bargaining agent, if any, or either of them, pay all of the costs of preparing the plan;

(d) may confirm, vary or revoke orders of review officers;

(e) may, for the female job class that is the subject of the complaint or reference, order adjustments in compensation in order to achieve pay equity, where the Hearings Tribunal finds that there has been a contravention of subsection 7 (1)

(e.1) may determine whether a sale of a business has occurred;

(f) may order that the pay equity plan be revised in such manner as the Hearings Tribunal considers appropriate, where it finds that the plan is not appropriate for the female job class that is the subject of the complaint or reference because there has been a change of circumstances in the establishment; and

(g) 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.

[Emphasis added]

[70] This case followed the path outlined in the legislation. One party, the Ontario Nurses’ Association (a bargaining agent) held the view that there were changed circumstances that had caused the existing pay equity plans to be no longer appropriate. Pursuant to s. 14.1(1), it gave notice requiring the employer (the 10 Community Care Access Centres) to negotiate. The negotiations failed. In its decision the Pay Equity Hearings Tribunal accepted that the 10 Community Care Access Centres had responded to the request for negotiations in a manner that fit within the process outlined by the Pay Equity Act:

ONA gave the respondents notice to bargain under section 14.1. The Respondents were required to come to the bargaining table, but they were not obligated to accept the view that the pay equity plans were no longer appropriate and required amendment, or further, that the Respondents were under a statutory duty to bargain pay equity maintenance. Ultimately, following two meetings with ONA, and one further meeting with ONA and other interested trade unions, the Respondents determined that all that they were required to do was to review and maintain the pay equity plans and advise ONA of their efforts in that regard. Although it would have been open to the Respondents to involve ONA in the maintenance review exercise, they were not bound statutorily to do so…. [^99]

[71] A Review Officer investigated. In the absence of a settlement, he made an order. He found that pay equity had not been maintained. The Order directed what was to take place to re-establish pay equity. That work was undertaken and the result has not been questioned.

[72] The application to the Pay Equity Hearings Tribunal was with respect to one of the issues determined by the Review Officer. Was the employer obliged to negotiate with the bargaining agent? Really the question was whether the employer should be required to negotiate amendments to the existing plan or a new plan when it believed the existing plan to still be appropriate. One has to wonder how compelling a party to negotiate in such circumstances can be seen as a meaningful way to progress the issue of gender discrimination. This was dealt with by the parties as a labour relations disagreement. The union wants to manage the state of pay equity as it perceives it. If it has the right to negotiation as it claims, it need only provide notice that it is of a view that there is a changed circumstance and force the employer to the table. The employers began the process of negotiation but concluded that, in the situation they could not be compelled to do so. They withdrew. They do not want to bend to what they see as the unjustified “view” of the union. As it is, the determination to be made will not affect this situation. The merits have been dealt with. This is a case brought by the union to determine who is in control of pay equity issues as between the unions (bargaining agents) and employers. It is not either of the parties. Pursuant to the Pay Equity Act it is the Pay Equity Commission that is to deal with our collective concern for pay inequity based on gender. The Pay Equity Commission controls and directs the means by which the discrimination pay equity concerns represent is to be resolved if the parties are unable to acknowledge and agree that there is a problem and deal with it.

[73] This understanding of how the process works was acted on by the Review Officer and referred to and explained by the Pay Equity Hearings Tribunal (see the quotation from its decision found at fn. 67 above) and has been referred to elsewhere by the Pay Equity Hearings Tribunal:

By allowing for a subjective determination of when negotiations may be necessary, s. 14.1(1) provides the procedure by which the OSSTF can comply with its s. 7(2) obligation. If there is no agreement, then there is a procedure for seeking the Commission’s assistance in settling, deciding or adjudicating the dispute.[^100]

[74] The issue in this case, as stated, refers to whether in response to requests made pursuant to sections 13.1 and 14.1 of the Pay Equity Act, the 10 Community Care Access Centres (the respondents) were required to negotiate the maintenance of pay equity. The Review Officer found that “in the ONA bargaining unit…pay equity was not maintained”[^101] The position of the Ontario Nurses’ Association is that the cause of this failure is the 2006 realignment of the Community Care Access Centres.

[75] “Maintenance” is not defined in the legislation but refers to

…the means by which an employer ensures that compensation practices are kept up-to-date and remain consistent with pay equity principles. Subsection 7(1) of the Act imposes an obligation on an employer to establish and “maintain” compensation practices that provide for pay equity. Maintenance is an ongoing responsibility.[^102]

[76] Similarly,” changed circumstances” are not defined but should be understood to be significant, identifiable events:

Some examples of changed circumstances could be: restructuring of the establishment; the certification of a union in a non-union establishment; and the amalgamation or merger of two or more employers. (Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73; and St. Joseph’s Villa (1993), P.E.R. 33).[^103]

[77] Maintenance and a changed circumstance are qualitatively different: one continues, the other is reflective of an occurrence at a moment in time. They can be, but are not necessarily, related. A changed circumstance may be the cause of failed maintenance of pay equity but even if it is, it does not necessarily trigger the application of s. 14.1 of the Pay Equity Act:

…In my view, the Act does not necessarily compartmentalize changed circumstances and maintenance of pay equity, and never the twain shall meet. It seems to me that a change in circumstances may trigger the obligation to maintain pay equity under subsection 7(1), while at the same time not triggering subsection 14.1(1).[^104]

[78] This is exactly the basis on which the Review Officer proceeded, under the heading: “Has the Employer Maintained Pay Equity for Female Job Classes in Accordance with the Act?” he found:

The bargaining units from the predecessor CCACs did not remain intact when they transferred to the Employer, and they underwent considerable restructuring and reorganizing.

[All but one of the nine orders of the Review Officer found in the Record of Proceedings contains a paragraph in this position reflecting where the job classes in the Ontario Nurses’ Association originated or came from (the one without such a paragraph being (2) Erie St. Clair Community Care Access Centre)]

In the ONA bargaining unit, as in other bargaining units at the Employer, and in the excluded group, job classes that achieved pay equity under various different DAPs were grouped together, and their job values were determined using different job evaluation tools resulting in pay equity not being maintained.

To ensure pay equity is being maintained under Part I of the Act, the Employer is required to assess the skill, effort, responsibility and working conditions of job classes using one job evaluation tool and to compare them using the proxy method of comparison.[^105]

[79] In substance, this is a finding that the existing pay equity plans were still appropriate and a direction of what needed to be done within those plans to ensure pay equity was maintained. This is the finding made by the Pay Equity Hearings Tribunal:

However, even if we felt compelled to follow the reasoning in [Ottawa Board of Education], there is no evidence here that the impact of on-going maintenance amounts to changed circumstances in the establishments of the respondents that renders the pay equity plans no longer appropriate.[^106]

[80] I mention this to say again that this attempt to verify the existence of a supposed right to negotiate has no direct relevance to the situation that spawned it. The Order of the Review Officer has been complied with. This decision will not affect this case. When framed in relation to section 14.1 (changed circumstances) the issue assumes that the failure to maintain pay equity is a changed circumstance. The assumption has no impact because of the finding that, in the circumstances of this case, the existing pay equity plans are still appropriate. It bears noting that in any subsequent case the question of whether the failure to maintain pay equity is a changed circumstance will have to be dealt with. If it is not, section 14.1 of the Pay Equity Act will not apply.

[81] The Pay Equity Hearings Tribunal heard submissions founded in the proposition that there had been a sale and that on that basis there was an obligation to negotiate. The end result is the same a when there are changed circumstances. The parties are provided with an opportunity to negotiate where the existing plans are no longer appropriate but if not successful, the resolution of pay equity will pass to the administrative processes available being first a settlement arrived at with the assistance of a Review Officer or an Order imposed by such an officer and, followed, if necessary, by a hearing and decision made by the Pay Equity Hearings Tribunal. The end result is the same but the route travelled to get there somewhat different.

[82] Under section 13.1(1) the determination of whether there has been a sale is a question of fact. If there has been a sale, certain responsibilities flow to the purchaser:

13.1 (1) If an employer who is bound by a pay equity plan sells a business, the purchaser shall make any compensation adjustments that were to be made under the plan in respect of those positions in the business that are maintained by the purchaser and shall do so on the date on which the adjustments were to be made under the plan.

[83] However, section 13.1(2)(a) provides that if, because of the sale, the seller’s plan or the purchaser’s plan is no longer appropriate, the seller or the purchaser, as the case may be, shall in the case of employees represented by a bargaining agent, enter into negotiations with a view to agreeing on a new plan. In the context of a sale the determination of whether the existing plan is no longer appropriate requires more than a party coming to a view and seeking the agreement of the other:

(2) If, because of the sale, the seller’s plan or the purchaser’s plan is no longer appropriate, the seller or the purchaser, as the case may be, shall,

(a) in the case of employees represented by a bargaining agent, enter into negotiations with a view to agreeing on a new plan;

[84] First, there has to be a sale. In its plain and ordinary meaning a sale is the transfer of ownership (title) of property from one to another for a price (consideration). There is no suggestion that this has happened here. On what basis is this referred to as a sale? The decision of the Tribunal refers to s. 13.2 of the Pay Equity Act:

ONA points out, in fact, that subsection 13.1 of the Act, introduced in 1997, expressly classifies occurrences (including a health services integration) under PSLRTA as constituting a sale of business; and section 13.2 of the Act, introduced in 2006, makes clear that health services integrations under PSLRTA involving health service providers under LHSIA, including the CCACs, constitute a sale of business within the meaning of section 13.1 of the Act.

In fact, section 13.2 makes it abundantly clear that the reorganization (via amalgamation) of the CCACs pursuant to LHSIA constituted a sale of business.[^107]

[85] The problem is that section 13.2 was repealed as of May 29, 2019. The decision of the Pay Equity Hearings Tribunal was released months later, on September 10, 2019.[^108] There is no reference to this in its reasons, the factums filed or the submissions made. In particular no submissions were made as to whether, in this situation, s. 13.2 remains in effect for matters already underway at the time of its repeal.

[86] For completeness I point out that s. 13.1 (4.1) of the Pay Equity Act exists today as it did prior to the repeal of s. 13.2. It says:

(4.1) This section applies with respect to an occurrence described in sections 3 to 10 of the Public Sector Labour Relations Transition Act, 1997. For the purposes of this section, the occurrence shall be deemed to be the sale of a business, each of the predecessor employers shall be deemed to be a seller and the successor employer shall be deemed to be the purchaser.

[87] The “occurrences” described in section 8 of the Public Sector Labour Relations Transition Act, 1997 are the amalgamation of two or more “health service providers” and the transfer of all, or substantially all, of the assets of one health care provider to another.[^109] This leaves unanswered the question of whether the Community Care Access Centres are “health service providers”. The applicable definition of “health service provider” is found in section 2(2) of the Connecting Care Act, 2019.[^110] The section lists 16 different “persons and entities” as “health service providers”. It is not clear to me that the Community Care Access Centres are included. In any case, I repeat no submissions were made that account for these sections or demonstrate whether the amalgamations and realignment these centres constitute a sale under the Pay Equity Act.

[88] If there has been a sale, pursuant to s. 13.1(2)(a), the question would arise as to whether that sale has caused any existing pay equity plan to no longer be appropriate. Unlike, the circumstance that applies under s. 14.1 (changed circumstances) the question is not purely subjective and yet the mechanisms available and the responsibilities of those involved are essentially the same. Pursuant to section 13.1(2)(a) of the Pay Equity Act, if, because of the sale, the pay equity plan being utilized is no longer appropriate, the seller or purchaser, depending on whose plan it is, enter into negotiations, just as the employer did in this case. If the seller or purchaser, whichever it is, feels the plan is still appropriate, it is likely that he, she or it will try and convince the employees of this. So long as the negotiations are carried out in good faith there can be no objection. Once 120 days have passed, if there is no agreement, the employer is required to give notice to the Commission and the matter moves into the administrative processes the Pay Equity Act provides.[^111]

[89] Suppose, as in this case, the seller or purchaser takes the position that the existing plan is appropriate and that, accordingly there is no obligation to negotiate. What options would be available? It seems unlikely the courts would respond. The scheme to deal with pay equity concerns is in the legislation. Where any party believes the Pay Equity Act is being contravened, they are directed to make a complaint to the Commission:

22 (1) Any employer, employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining that there has been a contravention of this Act, the regulations or an order of the Commission.

[90] With a complaint in hand, the administrative procedures found in the Pay Equity Act take over:

23 (1) Subject to subsection (2), when the Commission receives a complaint, a review officer shall investigate the complaint and may endeavour to effect a settlement.

(2) The review officer shall notify the parties and the Hearings Tribunal as soon as he or she decides that a settlement cannot be effected and that he or she will not be making an order under subsection 24 (3).

[91] The confirms what was said earlier in these reasons. The Pay Equity Act is directed to resolving a form of systemic gender discrimination. It seeks to solve an issue not just between the parties but to implement a value of concern to our society as a whole. If those involved cannot deal with the issue at hand, it is not to be allowed to get lost in some internecine battle about the state of the existing pay equity plan and whether negotiations must proceed because that plan is no longer appropriate. It will be resolved by the administrative processes in place through the broad authority given to the Commission, its Review Officers and the Pay Equity Hearings Tribunal. It is, of course, possible for an Order of a Review Officer or a decision of the Tribunal to direct that negotiations take place. In fact, it seems likely that any effort made by a Review Officer to settle the matter would be a form of negotiation, albeit one with a third-party facilitator, being the Review Officer, taking part. However, the authority of the Review Officer and Tribunal is much broader than requiring negotiations be completed. That authority is directed to resolving the discriminatory effect of an absence of pay equity.

[92] For the moment it should, by now, be clear; based upon the words of the statute, its purpose and intent there is no inexorable right, in a bargaining agent, to a negotiation of the maintenance of pay equity. The decision of the Pay Equity Hearings Tribunal was reasonable.

Analysis Part IV (the application of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and Freedoms)

[93] Nonetheless, the Ontario Nurses’ Association says that the Charter of Rights and Freedoms must be accounted for. It does not attack the Pay Equity Act or say that any part of it should be struck down. Rather the Ontario Nurses’ Association submits that when the spirit and intent of the Charter is applied to the Act the right of a bargaining agent to negotiate the maintenance of pay equity is apparent.

[94] This is not the first time that the application of the Charter of Rights and Freedoms to the Pay Equity Act has been considered by this Court. In Ontario Nurses’ Association v. Participating Nursing Homes[^112] two unions (one of which was the Ontario Nurses’ Association) applied to the Pay Equity Hearings Tribunal alleging that the employer had violated the Pay Equity Act by failing to properly maintain pay equity. The Tribunal rejected those arguments and the two unions sought judicial review. The Court found that the Pay Equity Act does not contravene s. 15 of the Charter of Rights and Freedoms (freedom from discrimination)[^113] but that the Tribunal erred by failing to consider Charter values when interpreting the Act. The matter was returned to the Pay Equity Hearings Tribunal “to specify what procedures should be used to ensure that the claimants continue to have access to male comparators in order to determine whether pay equity has been maintained.”[^114]

[95] The case stands out because of its determination that the application of the values demonstrated by the Charter, in the context of administrative decisions, is not limited to circumstances where there is ambiguity in the statute being interpreted or applied. Relying on Doré v. Barreau Du Québec[^115] and Loyola v. Quebec (Attorney General)[^116] the Court outlined framework for the applicable analysis:

(1) Determine the preliminary issue of whether the decision engages the Charter by limiting its protections; and

(2) If such a limitation has occurred determine whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.

[96] The Court explained what was meant by “a proportionate balancing”:

A proportionate balance is one that gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate. Such a balance will be found to be reasonable on judicial review.[^117]

[97] The case concerned the methodology used to evaluate the presence or absence of pay equity in circumstances where there is no male comparator within the workplace being evaluated. The legislation prescribes that the “proxy comparison method” be used in such circumstances. In confirming that the Pay Equity Act does not contravene s. 15(1) of the Charter of Rights and Freedoms, the Court noted that the Act requires every employer to whom it applies to “establish and maintain compensation practices that provide for pay equity in every establishment of the employer.”[^118] The obligation to maintain pay equity applies regardless of the methodology by which pay equity was achieved.

[98] The issue that remained was how pay equity was to be maintained in work places where there was no male comparator. The Court applied the framework it had extracted from Doré and Loyola. The manner in which the pay equity maintenance provision was being applied did create a distinction:

Women in predominantly female establishments have their pay equity maintained without ongoing reference to a male comparator. Women in other establishments have their pay equity maintained by ongoing reference to a male comparator. The distinction is undeniable.[^119]

[99] The Court undertook a “proportionate balancing”. The Pay Equity Hearings Tribunal had concluded that it was possible to maintain pay equity for women within female dominated workplaces without continued resort to the deemed male comparators. This approach did not give full effect to the Charter protections, at stake:

By defining “maintenance” for those using the proxy methodology as requiring the continuation of the wage adjustment made in 1994 without ongoing relation to a male comparator, the Tribunal failed to give effect as fully as possible to the equality protection at stake, given the statutory mandate.

There is nothing to support the Tribunal’s bald conclusions that not requiring the employer to maintain pay equity using the proxy methodology furthers the Act’s ameliorative purpose or that it does not perpetuate historic disadvantage or stereotyping.[^120]

[100] The Court concluded that:

… 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.[^121]

And ordered that:

Accordingly, this matter is remitted to the Tribunal to specify what procedures should be used to ensure that the claimants who achieved pay equity through the proxy methodology continue to have access to a male comparator in order to determine whether pay equity has been maintained.^122

[101] In its factum the Attorney General submits that the decision of the Divisional Court in Ontario Nurses’ Association v. Participating Nursing Homes is wrong and should not be followed. The factum points out that the case was considered by the Court of Appeal. All five of the judges who decided the appeal did so without recourse to Charter values. The three-judge majority disposed of the appeal by finding the decision of the Pay Equity Hearings Tribunal was unreasonable on statutory interpretation grounds and held that it was unnecessary to consider whether the Tribunal erred in failing to take into account Charter values.[^123] Two of the judges dissented and would have found the decision of the Pay Equity Hearings Tribunal reasonable.[^124] The dissenting judgment held that Charter values should not be used when interpreting statutes where there is no genuine ambiguity.[^125]

[102] There may be circumstances where this Court would overrule one of its past judgments. To do so in this case would be both inappropriate and unnecessary.

[103] Why is it inappropriate? The law is not fixed and immovable. Over time it evolves. Nuances appear and distinctions are made. The decision of the Divisional Court in Ontario Nurses’ Association v. Participating Nursing Homesexpands how the Charter of Rights and Freedoms may impact on decisions taken by administrative tribunals. The issue of the true parameters of the impact of the Charter on such decisions and decision makers will be revisited and refinements may or may not appear. This will depend on the particular circumstances of each case. The proper role of this Court in this case, is not to pre-emptively overturn its earlier decision but to take the measure of that decision making whatever distinctions or refinements to the principles it enunciates or relies on that are, in its judgment, called for.

[104] Why is it unnecessary for the earlier decision to be overturned? Because the answer is clearly the same whichever analytical approach is applied. It will be plain from what has already been said in these reasons that there is no ambiguity in the legislation as to the responsibility for maintaining pay equity. Contrary to what is said by the Ontario Nurses’ Association, s. 7 of the Pay Equity Act is clear.[^126] The responsibility for maintaining pay equity rests with the employer. The legislation specifies those circumstances where negotiations are to take place. Maintenance is not one of them. It may be that “changed circumstances” will cause pay equity to fail, for a gap in wage rates to reappear, but this does not create a right to negotiate. That would only come into play if the existing pay equity plans are no longer appropriate. A bargaining agent, being of the view that some changed circumstance, or sale, has rendered existing pay equity plans inappropriate can seek negotiations, but if the parties do not agree that the various preconditions have been satisfied, those negotiations will fail. In any event if they don’t succeed, after 120 days the Pay Equity Commission will be notified and the issues resolved under its auspices. Maintaining pay equity is not a shared responsibility. The bargaining agent has a role to play[^127] but it is collateral not collaborative.

[105] If the broader role for the Charter of Rights and Freedoms taken up by the Divisional Court in Ontario Nurses’ Association v. Participating Nursing Homes is applied, that is if Charter values are to be considered in interpreting the Pay Equity Act the result is the same. The Ontario Nurses’ Association is at some pains to submit that this situation is the same as in Doré v. Barreau du Québec.[^128] It is not. In Doré a judge, both during a court appearance and in the subsequent judgment, was highly critical of a lawyer. The judge was reprimanded by the Canadian Judicial Council. The lawyer wrote a private letter to the Judge. Its content was vitriolic and insulting. A complaint was launched alleging that the lawyer had violated the applicable code of ethics. The lawyer was sanctioned. The letter was outside the objectivity, moderation and dignity required of lawyers. The case made its way to the Supreme Court of Canada. The question was whether the reprimand (part of the sanction that was imposed) was a breach of the lawyer’s right to freedom of expression as provided for in s. 2(b) of the Charter of Rights and Freedoms.[^129] The Court determined that a review as to whether an administrative decision-maker has exercised its discretion in accordance with Charter protections should be undertaken within an approach dictated by administrative law.[^130] The Court concluded that in assessing whether such an adjudicated decision violates the Charter, the Court engages in a balancing, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right.[^131] Is there an appropriate balance between rights and objectives so as to ensure that the rights at issue are not unreasonably limited? In Doré the decision that the tone and context of the letter warranted a reprimand represented a proportional balancing of the lawyer’s freedom of expression as against the statutory objective of ensuring that lawyers behave with moderation and dignity.[^132] The lawyer’s freedom of expression was not unreasonably limited.

[106] The circumstance of the case being decided is different. The question of whether the Ontario Nurses’ Association has a right to negotiate the maintenance of pay equity is not a discretionary decision requiring the balancing of competing values. This is a matter of interpreting the legislation. It is important to remember that the Ontario Nurses’ Association is not attacking the constitutional validity of the legislation. It just wants it to be interpreted differently. The thrust of its submission is that imputing the intent of the statute as it sees it, and applying Charter values to that intent, requires the Court to infer that the right to negotiate is present in the legislation. Put bluntly, it wants the Court to read something into the words of the legislation that is not there. Be that as it may, it does not matter because, in any event, as has already been said, the intent of the legislation is not that a bargaining agent shares the responsibility for maintenance of pay equity with the employer and that issues surrounding this obligation are to be resolved between them. If they can agree that there is a problem and resolve it, that would be desirable, but if they cannot the issue passes to the Pay Equity Commission, the process of review and if necessary, a hearing by the Pay Equity Hearings Tribunal.

[107] The difficulty with the position taken by the Ontario Nurses’ Association is underscored by a consideration of Ontario Nurses’ Association v. Participating Nursing Homes. In that case the two unions posited that the decision of the Pay Equity Hearings Tribunal, rather than ameliorating the problem of gender discrimination in the relative pay between men and women, exacerbated the problem by failing to allow for a reasonable process of maintaining pay equity in work places where there was no appropriate male comparator. Hence the reliance on section 15(1) of the Charter of Rights and Freedoms which provides for equal benefit of the law without discrimination.[^133] The issue in Ontario Nurses’ Association v. Participating Nursing Homes ran to the core of the intention behind the Pay Equity Act, the desire to address the broad societal issue of discrimination in the work place albeit on a case-by-case basis. That is not what is happening here. In this case, the Ontario Nurses’ Association is not relying on section 15 of the Charter; it refers to section 2(d), the freedom of association.[^134] The concern is not whether gender discrimination is being continued or undermined but how the resolution of that concern was dealt with (through review orders and not negotiation). What is being proposed is that Doré v. Barreau Du Québec be followed and that if the “proportional balancing” it calls for is undertaken, the limit to the right to freedom of association will be found to be too great to be sustained in face of the objective of maintaining to pay equity, at least in this case.

[108] In this situation what limits are there to the freedom of association? Are there any? This is the first of the two questions outlined in the framework set by Doré. The Pay Equity Act takes account of bargaining agents and provides the means by which they can take part in the pay equity scheme.[^135] The object of the legislation is to deal with a prevalent form of discrimination. The fundamental responsibility is with the employer, understanding that where the employer and the bargaining agent (where there is one) do not agree on how pay equity is to be maintained, the resolution of the issue will be dealt with through other mechanisms the legislation puts in place. The bargaining agent may complain to the Commission, contribute to any investigation and participate as a party before the Pay Equity Hearings Tribunal. There is no limitation, within the process set by the Pay Equity Act that would limit the ability of the Ontario Nurses’ Association from pursuing the collective interests of its members. The Pay Equity Hearings Tribunal considered the circumstances and the legislation and concluded there was no limitation on the freedom of association:

In respect of the first question to be answered, in our view, an interpretation of the Act finding that bargaining agents do not have a right to bargain pay equity maintenance does not limit the freedom of association. Trade unions are entitled under the Act to bargain the steps necessary to achieve a pay equity plan, and to bargain amended pay equity plans (within the parameters established in subsection 14.1(1) of the Act). The bargaining agent also has a role to play under the Act in maintenance, an implicit monitoring role under section 7(2); as well the bargaining agent may exercise a right under the Act to make a complaint on behalf of its members to the Pay Equity Commission, and an application to the Tribunal, in the event of any contravention of the employer’s obligation to maintain pay equity. This is roughly analogous a trade union’s normal collective bargaining role that sees it negotiating the terms of a collective agreement, and the ensuing responsibility of the trade union to monitor the collective agreement for compliance and file grievances for the breaches thereof.[^136]

[109] In the event that it was wrong in its response to the first question, the Pay Equity Hearings Tribunal went on to consider the second question put by the Doré framework: whether the limit imposed on the freedom of association is proportionately balanced in relation to the objectives of the legislation. It is difficult to see how it could be found that proportionally balancing any limitation against the object of maintaining pay equity would find that the freedom of association was disproportionately impacted. The argument relied on is that the bargaining agent is an equal partner in the provision and maintenance of pay equity. It is not. The responsibility is with the employer. If pay equity is not maintained, it is the employer not the union that makes up the difference. In the context of maintaining pay equity the role of the bargaining agent is to monitor and make complaints to the Pay Equity Commission call out the failure of the employer to meet this responsibility. The Pay Equity Hearings Tribunal considered the proportional balancing:

As the Court in the ONA Decision observed, the purpose of the Act is to redress pay discrimination against women and ensure that it does not re-emerge. ONA says that the trade union is integral to achieving the purposes of the Act However that may be (and bearing in mind that the Act applies also to non-union workplaces which are required to achieve and maintain pay equity without the intervention or assistance of a trade union), the fact that the Act limits the bargaining agent’s bargaining rights to the negotiation of the achievement of pay equity, as opposed to the maintenance of pay equity, does not in our view create a disproportionate imbalance against the freedom of association or subvert the purposes of the Act. As we have observed, the bargaining agent has an important statutory responsibility in both the achievement of pay equity and in the maintenance process. However, the Legislature has seen fit not to subject pay equity maintenance to mandatory bargaining. We are not persuaded that that legislative policy unduly compromises the freedom of association of the employees in ONA’s bargaining units.

[110] Regardless of the analytical approach taken, the identification and resolution of any ambiguity or the application of Charter values to the interpretation and application of the Pay Equity Act, the determination is the same. The Charter of Rights and Freedoms and the values that it informs are not transgressed by the decision of the Pay Equity Hearings Tribunal.

Conclusion

[111] The application is dismissed. The decision of the Pay Equity Hearings Tribunal was reasonable.

Costs

[112] Pursuant to the agreement between the parties no costs are awarded.

Lederer, J.

I agree _______________________________

R. Smith, J.

I agree _______________________________

Kristjanson, J.

Released: September 21, 2021

CITATION: Ontario Nurses’ Association v. 10 Community Care Access Centres, 2021 ONSC 5348

DIVISIONAL COURT FILE NO.: 720/19

DATE: 20210921

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. Smith, Lederer, Kristjanson JJ.

APPLICATION UNDER The Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, as amended and Rule 68 of the Rules of Civil Procedure

AND IN THE MATTER OF A DECISION OF THE PAY EQUITY HEARINGS TRIBUNAL DATED SEPTEMBER 10, 2019

BETWEEN:

ONTARIO NURSES’ ASSOCIATION

Applicant

10 COMMUNITY CARE ACCESS CENTRES (Central; Erie St Claire; Waterloo-Wellington; Central East; Hamilton Niagara Haldimand Brant; North East; North Simcoe Muskoka; North West; South East; South West) and THE PAY EQUITY HEARINGS TRIBUNAL

Respondents

REASONS FOR JUDGMENT

Released: September 21, 2021

[^1]: Ontario Nurses’ Association v Central Community Care Access Centre, 2019 86314 (ON PEHT).

[^2]: R.S.O. 1990, c. P. 7

[^3]: Ibid (Preamble) and s. 4 (purpose of the Act), the statute, at s. 1, defines the term “female job classes as:

“female job class” means, except where there has been a decision that a job class is a male job class as described in clause (b) of the definition of “male job class”,

(a) a job class in which 60 per cent or more of the members are female,

(b) a job class that a review officer or the Hearings Tribunal decides is a female job class or a job class that the employer, with the agreement of the bargaining agent, if any, for the employees of the employer, decides is a female job class;

[^4]: Ibid s. 1: Hearings Tribunal” means the Pay Equity Hearings Tribunal established by this Act;

[^5]: Ibid ss. 27 (1) and (2)

[^6]: See for example Ibid ss. 6(7), 17(1), 23(4), 24(5), 24(6), 25(1), 25(4)(d) and (e), 25.1(5)

[^7]: See for example Ibid ss. 22(3), 25(1), (2), (4)(a) and (b) and (7), 25.1 (1), 25(6), 26(4), 29(1) and (2), 30(2), 32 (1.1) (2) and (2.1)

[^8]: The number had been reduced to 42 from 43 due to the 2003 merger of York and Etobicoke (Factum of the Respondents at fn. 10) (Caselines B9850)

[^9]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A15) (2019 86314): They met for the first time on December 17, 2010 (paras. 29-31), April 26, 2011 (para. 32) and October 2, 2012 (para. 33) (Caselines A24 and A25)

[^10]: Ibid at paras. 25 (identifies Corbett as a “consultant”) (Caselines A23) and para. 35 (Caselines A25)

[^11]: Ibid at para. 35 (Caselines A25) and see Record of Proceedings, Volume II, Agreed Statement of Facts at para. 54 (Caselines B881)

[^12]: Ibid at para. 35 (Caselines A25) and see Record of Proceedings, Volume II, Agreed Statement of Facts at para. 55 (Caseline B881)

[^13]: The term “review services” is not referred to in the Pay Equity Act. Although it appears that no specific reference was made to it, it seems these “complaints” were made pursuant to section 23(1) of the Act:

Subject to subsection (2), when the Commission receives a complaint, a review officer shall investigate the complaint and may endeavour to effect a settlement.

[^14]: The Agreed Statement of Facts (Record of Proceedings, Volume II) refers to “ten Notices of Decision" at para. 13 (Caselines B876) at para. 12 (Caselines B875) it refers to the singular "a Notice of Decision" and at para. 56 (Caselines B881) also in the singular "the above noted Notice of Decision". The Record of Proceedings, Volume 1 includes only 9 such orders, as follows: (1) Central Community Care Access Centre beginning at p. 265 (Caselines B286), (2) Erie St. Clair Community Care Access Centre at p.279 (Caselines B301), (3) Waterloo Wellington Community Care Access Centre at p. 293 (Caselines B316), (4) Central East Community Care Access Centre at p. 307 (Caselines B331), (5) Hamilton Niagara Haldimand, Brant Community Care Access Centre at p. 321 (Caselines B346), (6) North Simcoe Muskoka Community Care Access Centre at p. 335 (Caselines B361), (7) North West Community Care Access Centre at p.349 (Caselines B376), (8) South East Community Care Access Centre at p. 363 (Caselines B391) and (9) South West Community Care Access Centre at p. 377 (Caselines B406). So far as I can see there is no order in the Record of Proceedings in respect of North East Community Care Access Centre. Why this is so is not explained. I assume it is an oversight. The Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A15) at para. 2 (Caselines A16-A17) refers to ten such orders.

[^15]: Record of Proceedings, Volume II, Agreed Statement of Facts at para. 13 (Caselines B876); at para. 12 (Caselines B875)

[^16]: Ibid at paras. 14 and 15 (Caselines B876)

[^17]: See the following paragraphs of the following orders: (1) Central Community Care Access Centre at para. 61 (Caselines B294), (2) Erie St. Clair Community Care Access Centre at para. 60 (Caselines B309), (3) Waterloo Wellington Community Care Access Centre at para. 62 (Caselines B324), (4) Central East Community Care Access Centre at para. 61 (Caselines B339), (5) Hamilton Niagara Haldimand, Brant Community Care Access Centre at para. 60 (Caselines B354), (6) North Simcoe Muskoka Community Care Access Centre at para. 60 (Caselines B369), (7) North West Community Care Access Centre at para. 60 (Caselines B384), (8) South East Community Care Access Centre at para. 61 (Caselines B399) and (9) South West Community Care Access Centre at para. 61 (Caselines B414) all of which say the same thing:

Under Section 24 (3) of the Act, I Order the Employer to, with in 90 days of receipt of this Order, evaluate and compare key female job classes and non-key female job classes for pay equity using the proxy method of comparison, and to disclose to the Union and to me all documents and information relied on by the Employer to maintain pay equity for the bargaining unit.

[^18]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A15)(2019 86314) at para. 2 (Caselines A16-A17) and see the following paragraphs of the following orders: (1) Central Community Care Access Centre at para. 59 (Caselines B294), (2) Erie St. Clair Community Care Access Centre at para. 58 (Caselines B309), (3) Waterloo Wellington Community Care Access Centre at para. 60 (Caselines B324), (4) Central East Community Care Access Centre at p. 59 (Caselines B339), (5) Hamilton Niagara Haldimand, Brant Community Care Access Centre at para. 58 (Caselines B354), (6) North Simcoe Muskoka Community Care Access Centre at para. 58 (Caselines B369), (7) North West Community Care Access Centre at para. 58 (Caselines B383), (8) South East Community Care Access Centre at para. 59 (Caselines B399) and (9) South West Community Care Access Centre at para. 59 (Caselines B414) all of which say the same thing:

The Employer is not required to negotiate with ONA to maintain pay equity from January 1, 2007.

[^19]: The Pay Equity Act, supra (fn. 2) s. 24(6) states:

An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to the order, and, where the order was made following a complaint but the complaint has not been settled, the complainant may also request a hearing.

[Emphasis added]

[^20]: See Schedule C to the Applications to the Pay Equity Hearings Tribunal as follows (1) Central Community Care Access Centre (Caselines B433), (2) Erie St. Clair Community Care Access Centre (Caselines B454), (3) Waterloo Wellington Community Care Access Centre (Caselines B477), (4) Central East Community Care Access Centre (Caselines B498), (5) Hamilton Niagara Haldimand, Brant Community Care Access Centre (Caselines B519) (6) North East Community Care Access Centre (Caselines 540), (7)North Simcoe Muskoka Community Care Access Centre (Caselines B561), (8) North West Community Care Access Centre (Caselines B584), (9) South East Community Care Access Centre (Caselines B605) and (10) South West Community Care Access Centre (Caselines B626) all of which are the same.

[^21]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A15) (2019 86314) at para. 62 (Caselines A33) quoting from Record of Proceedings, Volume II: Agreed Statement of Facts at para. 17 (Caselines B876)..

[^22]: 2019 SCC 65, 441 DLR (4th) 1, 59 Admin LR (6th) 1, 312 ACWS (3d) 460

[^23]: Ibid at para. 84

[^24]: Ibid at para. 97

[^25]: Ibid at para. 99

[^26]: Ibid at para. 85

[^27]: Ibid at para. 102

[^28]: Factum of the Applicants at Title C above para. 21 (Caselines A277)

[^29]: Ibid at para. 16.

[^30]: ONA v. PNH, 2019 ONSC 2168 at paras. 48, 63 and74; Participating Nurses Homes v. Ontario Nurses’ Association ONSC 2772, 2019 at paras. 23, 25 and 29 and Corporation of the City of Windsor v. Shirley D Moor 2017 22919 (ON PEHT) at para. 38 (quoting Call-A-Service Inc./Harmony Hall Centre for Seniors (No. 3), 2008 88827 (ON PEHT) (April 28, 2008) at para. 25)

[^31]: Factum of the Applicant at fns. 33, 34, 35, 36, 37, 40 and 42 (Caselines A277-A278)

[^32]: In the Pay Equity Act “bargaining agent” is a defined term:

“bargaining agent” means a trade union as defined in the Labour Relations Act that has the status of exclusive bargaining agent under that Act in respect of any bargaining unit or units in an establishment and includes an organization representing employees to whom this Act applies where such organization has exclusive bargaining rights under any other Act in respect of such employees;

[^33]: Ontario Nurses' Association v. St. Joseph's Villa, 1993 5412 (ON PEHT) at para. 1 under the heading “Changed Circumstances”

[^34]: Welland County General Hospital v. S.E.I.U., Local 204 1994 CarswellOnt 7267, [1994] O.P.E.D. No. 36, 5 P.E.R. 12 (ON PEHT) at para. 53

[^36]: Ibid at para 2(25) under the heading “Changed Circumstances”

[^37]: Ibid at para. 4 immediately above “Disclosure”

[^38]: Ibid at para. 7 under “Status of a Union Certified After the Establishment of Pay Equity”

[^39]: Ibid at para. 1 above the heading “Changed Circumstances”

[^41]: 1995 7202 (ON PEHT)

[^42]: Ibid at para. 28

[^43]: 2010 CarswellOnt 18494 (ON PEHT)

[^44]: Pay Equity Act, supra (fn. 2) s. 7(1) and 13(1)

[^45]: Oakwood Retirement Communities Inc. v. SEIU, Local 1 Canada, supra (fn. 42) at para. 69

[^46]: Ibid at para. 73

[^47]: Ibid at para. 71

[^48]: 2017 22919 (On PEHT) considered on judicial review by this court at 2018 ONSC 2055

[^49]: Ibid (PEHT) at para. 33 and by this court at para. 37

[^50]: Ibid (PEHT) at para. 53 and by this court at para. 33 and 37

[^51]: Ibid (PEHT) at paras. 57 and 58 and by this court at para. 42-44

[^52]: Ibid (PEHT) at para. 65 and by this court at paras. 55-57. Both the Tribunal and the court, at the paragraphs referred to, noted:

As was discussed in Welland, supra, we are also persuaded by the absurdity of requiring a union, which is funded by union dues, to pay wage adjustments. This would mean that the employees in question would be, in effect, paying for their own wage adjustments. Clear language is required in order to produce such a result.

[^53]: Ibid (PEHT) at para. 65

[^54]: Factum of the Applicant at para. 42 (Caselines A285) and the cases referenced at fn. 84 all of which are reviewed herein.

[^55]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A15) (2019 86314) at para. 70

[^56]: Ibid at para. 71

[^57]: Ibid at para. 74

[^58]: Ibid at para. 76

[^59]: Factum of the Applicant at para. 20 (Caselines A276-A277)

[^60]: The Pay Equity Act, supra (fn. 2) at s. 13.1 (4.1) states:

(4.1) This section applies with respect to an occurrence described in sections 3 to 10 of the Public Sector Labour Relations Transition Act, 1997. For the purposes of this section, the occurrence shall be deemed to be the sale of a business, each of the predecessor employers shall be deemed to be a seller and the successor employer shall be deemed to be the purchaser

The Public Sector Labour Relations Transition Act, 1997, S.O. 1997, c. 21 Sched. B s. 8(1) states:

This Act applies upon,

(a) the amalgamation of two or more health service providers; and

(b) the transfer of all, or substantially all, of the assets of one health service provider to another health service provider.

[^61]: Factum of the Applicant at para. 20 (Caselines A276-A277)

[^62]: 2012 ONSC 2051, [2012] O.J. No. 2541

[^63]: Factum of the Applicant at para. 6 (A270)

[^64]: Ibid at para. 6(a)

[^65]: Pay Equity Act, supra (fn. 2) at s. 14.1(3) and s. 16

[^66]: See the references at fn. 18

[^67]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A15) (2019 86314) at para. 80

[^68]: Ibid at para. 21

[^69]: Ibid at para. 22

[^70]: Ibid at para. 23

[^71]: Ibid at para. 25

[^72]: Ibid at para. 26

[^73]: Ibid at para. 22-33

[^74]: Ibid at para. 33

[^75]: Ibid at para. 35

[^77]: Ibid at para. 36

[^78]: Ibid at para. 36

[^79]: Factum of the Applicant at para. 57 (Caselines A2291)

[^80]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A15) (2019 86314) at para. 7 (Caselines A18)

[^81]: Record of Proceedings, Volume II, Agreed Statement of Facts at paras. 19-28 (Caselines B876-B878)

[^82]: Ibid at para. 25 (Caselines B877)

[^83]: Ibid at para. 16

[^84]: Record of Proceedings, Volume II, Agreed Statement of Facts at paras. 30-41 (Caselines B878-B880)

[^85]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A21) (2019 86314) at para. 18

[^86]: Ibid at para. 15 (Caselines A20)

[^87]: Ibid at para. 20 (Caselines A21)

[^88]: Record of Proceedings, Volume II, Agreed Statement of Facts at para. 11 (Caselines B875)

The Orders of the Review Officer under the heading Employer’ Submission list the “new classes [that] have been created. As an example: CHRIS Coordinator, Care Connector, Telecommunications Specialist, Rapid Response Nurse, Mental Health and Addictions Registered Nurse, Nurse Practitioner and Help Desk 1(Record of Proceedings, Volume I Order of the Review Officer December 18, 2015 at paras. 22 (see Caselines B289)).

[^89]: Record of Proceedings, Volume II, Agreed Statement of Facts at para. 17 (Caselines B876)

[^91]: Record of Proceedings, Volume I Order of the Review Officer December 18, 2015 at paras. 8 (for example see Caselines B332) where a change referred to in the Orders of the Review Officer is that during October 2012, the Case Manager female job class was renamed Care Coordinator

[^92]: Call-A-Services v. An Anonymous Employee, supra (fn. 28) at paras. 18-23

[^93]: Record of Proceedings, Volume II, Agreed Statement of Facts at para. 51 (Caselines B881)

[^94]: Ibid at para. 17 (Caselines B876)

[^95]: See paras. 64, 65, 66, 67, 70 and 95

[^96]: Factum of the Applicant at paras. 27 and 56 (Caselines A279 and A290)

[^98]: Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, [1996] 7947 (ON PEHT). at para. 10, see also para. 14, “Thus, notice to negotiate can be prompted by a subjective view held by one or the other party and para. 15 “By allowing for a subjective determination of when negotiations may be necessary, s. 14.1(1)…”

[^99]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A21) (2019 86314) at para. 89

[^100]: Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, [1996] 7947 (ON PEHT at para. 15. I note that earlier in the paragraph reference is made to the Ottawa Board of Education having acknowledged that it is obligated to negotiate with the OSSTF with respect to the maintenance of pay equity. The Pay Equity Hearings Tribunal distinguished that case from this one. In that case the OSSTF became the bargaining agent for two bargaining units. One that had been included in a non-union equity plan and the other that had been represented by a different union which had negotiated a pay equity plan on its behalf. Upon certification as bargaining agent, the OSSTF notified the Board, in writing, that it wished to enter into pay equity negotiations on behalf of each unit. The Board responded that it was not obligated to negotiate and the OSSTF applied to Review Services. The Review Officer ordered the Board to negotiate pay equity with both units. The Board challenged the orders. The Pay Equity Hearings Tribunal ordered that where some, but not all, of the employees covered by the employer’s non-union plan are subsequently organized into their own bargaining unit, a changed circumstance exists in the establishment which renders the plan no longer appropriate. A new agreement should be negotiated. However, the other bargaining unit already had a plan attributable to it. A change in bargaining agent did not affect the composition of the unit and therefore the capacity of the new bargaining agent to represent its members was not affected. That plan was left in place. The Pay Equity Hearings Tribunal, in the case being decided considered the comments made in the Ottawa Board decision in respect of “pay equity maintenance” as obiter. That case dealt with whether the employer had to bargain pay equity for the groups subsequently represented by the OSSTF in circumstances where the employer had previously “developed/negotiated” pay equity plans and not, as in this case, with pay equity maintenance. Moreover, the Board in that case, unlike the 10 Community Care Access Centres in this proceeding, conceded that it was obligated to negotiate pay equity maintenance with the trade union.

[^101]: The Review Officer’s Orders: (1) Central Community Care Access Centre at para. 51 (Caselines B293), (2) Erie St. Clair Community Care Access Centre at para. 50 (Caselines B308), (3) Waterloo Wellington Community Care Access Centre at para. 52 (Caselines B323), (4) Central East Community Care Access Centre at para. 51 (Caselines B338), (5) Hamilton Niagara Haldimand, Brant Community Care Access Centre at para. 50 (Caselines B353), (6) North Simcoe Muskoka Community Care Access Centre at para. 50 (Caselines B368), (7) North West Community Care Access Centre at para. 50 (Caselines B383), (8) South East Community Care Access Centre at para. 51 (Caselines B398) and (9) South West Community Care Access Centre at para. 51 (Caselines B413) all of which say the same thing.

[^102]: Call-A-Services v. An Anonymous Employee, supra (fn. 28) at para. 25

[^103]: Ibid at para. 29

[^104]: Ontario Secondary School Teachers' Federation v Simcoe Muskoka Catholic District School Board, 2018 123879 (ON PEHT) at para. 104

[^105]: The Review Officer’s Orders: (1) Central Community Care Access Centre at paras. 49-52 (Caselines B293), (2) Erie St. Clair Community Care Access Centre at paras. 49-51 (Caselines B308), (3) Waterloo Wellington Community Care Access Centre at paras. 50-53 (Caselines B323), (4) Central East Community Care Access Centre at paras.49-52 (Caselines B338), (5) Hamilton Niagara Haldimand, Brant Community Care Access Centre at paras. 48-51 (Caselines B353), (6) North Simcoe Muskoka Community Care Access Centre at paras. 48-51(Caselines B368), (7) North West Community Care Access Centre at paras. 48-51 (Caselines B382-B383), (8) South East Community Care Access Centre at paras. 48-52 (Caselines B398) and (9) South West Community Care Access Centre at paras. 49-52 (Caselines B413).

[^106]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A21) (2019 86314) at para. 80

[^107]: Ibid at para. 45

[^108]: Protecting What Matters Most Act (Budget Measures), 2019, S.O. 2019, c. 7 Sched. 53 s. 8 (Assented to May 29, 2019)

[^109]: S.O. 1997, c. 21 Sched. B s. 8(a) and (b)

[^110]: S.O. 2019, c. 5, Sched. 1

[^111]: The 120 day time frame is established under section 14.1(3) of the Pay Equity Act which is concerned with changed circumstances. It is made to apply where there has been a sale through section 13.1(3):

(3) Clause 14 (2) (a), subsections 14.1 (1) to (6) and 14.2 (1) and (2) apply, with necessary modifications, to the negotiation or preparation of a new plan.

[^112]: 2019 ONSC 2168

[^113]: Section 15(1) of the Charter of Rights and Freedoms states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[^114]: Ontario Nurses Association v. Participating Nursing Homes, supra (fn. 104) at para. 5

[^115]: 2012 SCC 12, [2012] 1 S.C.R. 395).

[^116]: 2015 SCC 12, [2015] 1 S.C.R. 613

[^117]: Ontario Nurses Association v. Participating Nursing Homes, supra (fn. 104) at para. 69

[^118]: Ibid at para. 63 quoting s. 7(1) of the Pay Equity Act

[^119]: Ibid at para. 72

[^120]: Ibid at paras. 80 and 81

[^121]: Ibid at para. 90

[^123]: Ontario Nurses’ Association v. Participating Nursing Homes 2021 ONCA 148 at para. 85

[^124]: Ibid at paras. 119-134

[^125]: Ibid at paras. 136-156 At para. 137 the dissenting judgment concludes that… “that Charter values are relevant to statutory interpretation only where genuine ambiguity exists.”

[^126]: Factum of the Applicant at para. 69: “…in the further alternative, a genuine ambiguity exists with respect to how pay equity is to be maintained under s. 7…” (Caselines A296) For ease of reference, I quote section 7(1) again:

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

[Emphasis added]

[^127]: See fn. 67 which quotes Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A21) (2019 86314) at para. 80. I repeat a portion of that quotation here:

ONA, of course, was quite entitled to communicate those concerns to the Respondents, and in the absence of any action by them, to complain to the Pay Equity Commission that the Respondents were in breach of their obligation to maintain compensation practices that provide for pay equity. This fulfills the statutory role of the bargaining agent in matters of pay equity maintenance of ensuring the ongoing provision of pay equity following its achievement in the workplace.

[Emphasis added]

[^128]: Factum of the Applicant at paras. 70-72 (Caselines A296-A297)

[^129]: The Charter states:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

[Emphasis added]

[^130]: Doré v. Barreau Du Québec, supra (fn. 107) at paras. 2-8 The « framework for this approach is discussed at paras. 23-58

[^131]: Ibid at para. 6

[^132]: Ibid at para. 71

[^133]: Fully quoted, s. 15(1) of the Charter states:

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[Emphasis added]

[^134]: 2. Everyone has the following fundamental freedoms:

(d) freedom of association.

[^135]: See for example the Pay Equity Act sections 14, 14.1(3), 14.1 (4), 16(1)(a), 16(4)(1), 22(1), 24(1), 24(5), 24(6), 21.4(1), 21.4 (2), 25(2)(a), 25(4)(d) and 32(1)(c)

[^136]: Application Record, Decision of the Pay Equity Tribunal, September 10, 2019 (at p. 011) (Caselines A21) (2019 86314) at para. 87