CITATION: Trumble v. Pay Equity Hearings Tribunal, 2024 ONSC 3036

DIVISIONAL COURT FILE NO.: 2813/23

DATE: 20240529

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

C. MacLeod RSJ, Myers, and Leiper JJ.

BETWEEN:

JENNIFER TRUMBLE

Applicant

– and –

PAY EQUITY HEARINGS TRIBUNAL and THE CORPORATION OF THE TOWNSHIP OF LIMERICK

Respondents

Jennifer Trumble, for herself

Maureen A. Houston, for The Corporation of the Township of Limerick

Aaron Hart, for the Pay Equity Hearings Tribunal

HEARD at Ottawa (by videoconference): May 22, 2024

Myers J

REASONS FOR DECISION

Background

[1] Of its dozen or so staff members, the Township of Limerick employed three women before 2020. In a decision dated July 20, 2023, the Pay Equity Hearings Tribunal dismissed Ms. Trumble’s application claiming that the Township’s 2019 pay equity plan did not achieve pay equity as required by the Pay Equity Act, R.S.O. 1990, c.P.7.

[2] The Township’s pay equity plan was approved by the tribunal. It granted small retroactive pay increases to the other two female employees of the Township.

[3] Until leaving her position in 2020, Ms. Trumble was the Chief Administrative Officer/Clerk/Treasurer of the Township. She objects to the failure of the Township to increase her salary under its pay equity plan.

[4] Ms. Trumble seeks judicial review of the tribunal’s decision. She objects to numerous findings of fact made by the tribunal on evidence with which Ms. Trumble disagrees. Among other things, Ms. Trumble objects to the refusal of the tribunal to order production of privileged legal advice allegedly provided by the Township’s lawyers to the independent pay equity consultant. She objects to the acceptance by the tribunal of the consultant’s pay equity plan adopted by the Township. She objects to the failure of the tribunal to require specific male position holders be included in relevant comparator groups and the tribunal’s acceptance of the expert’s failure to include in its monetary comparisons all non-monetary benefits received by other male employees.

[5] In effect, Ms. Trumble seeks to reargue in court her submissions from the tribunal hearing. The record before us shows that she amassed and presented to the tribunal an impressive amount of detail about the duties and terms of hiring of all of the officers and employees of the Township for the relevant period. She mastered a substantial amount of procedural and substantive law. She presented her case to the tribunal in great detail over six days of hearing.

[6] Despite Ms Trumble’s comprehensive submissions, the tribunal held that the Township’s pay equity plan was lawful. Ms. Trumble asks us to review the tribunal’s decision. For the reasons that follow, we find that the tribunal’s decision was reasonable. We therefore dismiss this application for judicial review.

What is Judicial Review?

[7] The Pay Equity Act does not allow appeals to the court from decisions of the tribunal. Ms. Trumble is here seeking “judicial review” under s. 1 of the Judicial Review Procedure Act, RSO 1990, c J.1.

[8] An application for judicial review is not a “do-over” of a tribunal hearing. Neither is it an appeal searching for errors of law and palpable and overriding errors of fact (or mixed fact and laws) in the tribunal’s decision.

[9] The court is not the body charged with primary responsibility for determining pay equity issues in Ontario. The Legislature has assigned responsibility for pay equity issues to the tribunal and not to the court. The tribunal is composed of members with expertise and experience in the complex issues surrounding pay equity.

[10] On an application for judicial review, the court’s role is supervisory in nature. Rather than looking to correct substantive pay equity errors on an appeal, the court’s role on judicial review is to ensure that the tribunal performed its statutory assignment properly – both reasonably and fairly.

[11] The Supreme Court of Canada described the purpose of judicial review in its key precedent case called Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 as follows:

[12] …Reasonableness review is methodologically distinct from correctness review. It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. In order to fulfill Dunsmuir’s promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions...

[13] Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.

[12] Judicial review starts with a presumption that the reasonableness standard of review applies. Ms. Trumble submitted that an issue that she raises relating to the Township’s claim of lawyer client privilege over some documents requires review on a correctness standard because privilege is a question of central importance to the legal system. See Vavilov, at para. 87. I will deal with the document production issue below. It does not bear on the reasonableness standard of review that applies to the tribunal’s decision generally.

[13] In the case of Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, under the heading “Standard of review to be applied by the Divisional Court to the Decision” the Court of Appeal gave directions to this court as to how to conduct a reasonableness review under the Vavilov framework. Favreau JA wrote:

[91] In Vavilov, at para. 83, the court emphasized that the reasonableness review must focus on the reasons of the administrative decision maker. The reviewing court’s role is not to decide the issue afresh: “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem.” The court further emphasized, at para. 84, that the “reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion”.

[92] The hallmarks of a reasonable decision are justification, transparency and intelligibility: Vavilov, at para. 99.

[93] There are two types of “fundamental flaws” that may make a decision unreasonable: Vavilov, at para. 101. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. As explained in Turkiewicz, at para. 59, the “reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic”: see also Vavilov, at para. 102.

[94] Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101. Again, as described in Turkiewicz, at para. 60, the relevant factual and legal constraints include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact on the individual to whom it applies”: see also Vavilov, at para. 106.

[14] The court starts with the tribunal’s reasons to see if it can make sense of the logic of the decision. Then the court can look to see if the tribunal ran afoul of factual or legal constraints on its decision-making process.

[15] It is important to note however, that when looking at factual matters, the court is not to reweigh the evidence before the tribunal. The Supreme Court of Canada wrote the following at para. 125 of Vavilov:

[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”:... Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: [case references omitted.]

[16] Reasonableness can certainly be jeopardized where a decision maker fundamentally misapprehends or fails to take into account relevant evidence before it. See Vavilov at para. 126. But, that is very different thing than scouring a decision to test every finding of fact against the contested evidence that was presented by the parties.

Ms. Trumble’s Submissions

[17] Ms. Trumble does not really challenge the transparency or intelligibility of the tribunal’s decision. She challenges specific findings that it made along the path to its decision. She submits that the findings were not open to the tribunal on the evidence or based on the applicable provisions of the statute.

I will now explain briefly why I do not agree that any of the matters raised by Ms. Trumble, make the tribunal’s decision, “untenable in light of the relevant factual and legal constraints that bear on it.”

1. Privilege Issue and the Role of Chief Building Officer

[18] In a pre-hearing conference the tribunal ordered the Township to produce to Ms. Trumble its communication with its pay equity consultant expert witness.

[19] The Township took the position that its Chief Building Officer was not an employee and therefore he was not to be considered as a comparator in the pay equity analysis. It provided the relevant contractual and other documentary evidence relevant to the common law test of whether the officer was also an employee.

[20] There was no transcript kept of the hearing before the tribunal and we were not shown any ruling on the privilege issue. We are told by Ms. Trumble and Ms. Houston however that counsel for the Township spoke to the pay equity consultant and confirmed the view that the Chief Building Officer was not an employee of the Township. Ms. Trumble asked to see the lawyer’s opinion. Without confirming that there was a written opinion on the issue, the Township claimed privilege over legal advice it had received from its counsel. The tribunal did not require the Township to produce any opinion it may have had.

[21] The tribunal had before it the evidence needed to determine whether the Chief Building Office was a contractor or an employee. Counsel’s opinion to the Township, if any, would not have displaced the need for the tribunal to make the decision it made on the evidence before it.

[22] Ms. Trumble submits that the tribunal did not give sufficient weight to the fact that there was evidence that the Chief Building Officer had an address and regular hours. She invites the court to reweigh the evidence that was squarely before the tribunal.

[23] Ms. Trumble also submits that the Chief Building Officer must be an employee because under the Income Tax Act, RSC 1985, c 1 (5th Supp) office holders and employees are both taxed in the same manner. However, the process by which Parliament taxes people with various sources of revenue has no bearing on the common law test of whether the officer was also an employee of the Township. The Income Tax Act does not impose any legal constraint on the tribunal.

2. Compensation

[24] Ms. Trumble argues correctly that the Pay Equity Act has a definition of compensation that includes non-monetary benefits received by employees. She criticizes the tribunal then for ignoring the failure of the Township’s plan to consider extra sick days and vacation granted to the Public Works and Infrastructure Manager, the use of a municipal pickup truck for public works employees, and salvage rights from the landfill with respect to the Landfill/ Disposal Custodian.

[25] The tribunal did not ignore the employees’ non-monetary compensation. Rather, it said it reviewed the evidence and found that the benefits would not have made any difference in the relative job evaluations or the placement of the respective job classes. The tribunal did not ignore a legal constraint imposed by the statute. It found on the facts that the evidence made no difference to the outcome.

3. Composite Job Descriptions

[26] The Public Works and Infrastructure Manager of this Township was also its Fire Chief. Ms. Trumble submits that these two roles ought to have been merged and used as a comparator for her composite roles as both the Chief Administrative Officer/Clerk/Treasurer and the Community Emergency Management Coordinator.

[27] The tribunal found that the roles of Public Works and Infrastructure Manager and Fire Chief were two distinct roles that did not need to be filled by one person. It was also found that Ms. Trumble’s extra duties as Community Emergency Management Coordinator, although based on a statute, were minor and did not affect her senior job classification as Chief Administrative Officer/Clerk/Treasurer. The board did not agree with Ms. Trumble that there should be a recognized combined role of Public Works and Infrastructure Manager/Fire Chief to compare to her combined roles as Chief Administrative Officer/Clerk/Treasurer with minor duties as Community Emergency Management Coordinator.

[28] These were findings of fact grounded in the evidence before the board. Comparing job classifications in a manner sensitive to the legislative goal of ensuring pay equity lies at the heart of the tribunal’s experience and expertise. There is no basis for the court to decide that the tribunal’s findings of fact about these job descriptions is unreasonable or unjustified on the evidence before the tribunal. Rather than making the tribunal’s decision untenable, as submitted by Ms. Trumble, these findings of fact call for the court to defer to the tribunal’s assessment of the evidence before it.

4. The Gallagher Plan

[29] The Township initially tried to create a pay equity plan on its own. Ms. Trumble raised concerns. This led the Township to retain Gallagher Benefit Services (Canada) Group Inc. as its pay equity consultant. Jane Mizanski gave evidence on behalf of the consultant before the tribunal.

[30] Gallagher has a proprietary methodology to rate job duties and create appropriate comparator bands for pay equity purposes. It used its template methodology to create the pay equity plan that has been adopted by the Township. Although Gallagher initially balked at producing its proprietary design, the tribunal ordered the Township to disclose the plan and it did so.

[31] Ms. Trumble submits that the tribunal erred by allowing the Township to adopt the plan rather than reviewing each employee itself. But the tribunal understood the point. It held:

26. Ultimately, the question before this panel is whether the pay equity plan as adopted by Council is pay equity compliant and whether pay equity has been maintained. The fact that a different result was reached in an earlier process that was not adopted by Council is not overly relevant to whether the pay equity plan that was approved by Council complies with the Act. Accordingly, the Tribunal's role is to evaluate whether the Gallagher process and the plan resulting from it complies with the Act.

[32] The tribunal then went through the evidence on the various employees submitted by the parties, considered the concerns about people included or excluded, and the aptness of the comparator bands utilized by the Township. It wrote:

The jurisprudence is also well established that pay equity is not an exact science and there are a range of reasonable outcomes over which the employer has discretion so long as those outcomes are compliant with the Act.

[33] There is nothing about the use of the plan as the template to render the tribunal’s decision untenable.

5. Sex-base Differences in Information Collection

[34] To avoid introducing stereotypes or sex-based distinctions into the pay equity process, it is understood that information collection should be conducted as neutrally as circumstances allow. In this case, the Township’s three female employees performed considerable work on a pay equity plan before the Township retained its pay equity consultant. The Township had tried to use the Pay Equity Commission’s online tool to create a pay equity plan. In addition, the female employees filled out questionnaires concerning their positions and duties.

[35] After Gallagher was retained, it decided to seek information from male employees. Instead of sending them questionnaires, it interviewed the men. Ms. Trumble objects to this sex-based differentiation in information collection.

[36] Ms. Mizanski advised that pay equity plans represent the possibility for salary increases for female employees. They do not offer any pay adjustments for men. As such, it can be more difficult to engage men in the data collection process. As there were just a few men to be interviewed, the consultant proceeded in that way.

[37] The tribunal considered Ms. Trumble’s submission that the consultant gave “preferential treatment of male job classes”. It held at para. 35 of its decision:

Given Ms. Mizanski's testimony, the Tribunal finds that the job information was collected in a way that is accurate and consistent across classifications, we are not of the view that there was anything unfair or improper about the way information was collected in this case.

[38] While it is certainly preferable and expected that there will not be different processes for pay equity information to be collected as between the sexes, the tribunal’s finding was reasonable and open to it on the evidence in this case. The consultant had not designed a sex-differentiated information collection system. It was introduced to a small employer in which the female employees had already provided comprehensive information in writing. The consultant collected information from the small number of male employees in an efficient and fair manner. There was no systemic design flaw and the small number of people allowed for a customized solution.

6. Other Issues

[39] In the oral hearing, Ms. Trumble also raised issues about whether job classification ought to have been considered for positions that no longer existed. She raised issues about the exclusion of men from comparator groups. In her factum, she raised additional issues. All went to the manner by which the tribunal dealt with the evidence and arguments presented to it by Ms. Trumble. It was all effectively a request for the court to re-hear the matter as if it was the tribunal.

Outcome

[40] I find that the tribunal’s decision was transparent, intelligible and justified in law and fact. Ms. Trumble has not demonstrated any error that undermines the justifiability of the tribunal’s decision.

Costs

[41] Ms.Trumble submits that the legal process creates significant barriers for women seeking to achieve pay equity. She submits that the Township has been unjustly enriched throughout by underpaying women employees. She submits that a costs award against her will impair access to justice and further preclude women from achieving the important goal of the statute i.e. pay equity.

[42] If the Township was underpaying its female employees, that was corrected in 2019 when the Township adopted its pay equity plan. There was no basis for the court to intervene in the tribunal’s finding that the pay equity plan was lawful or to require that Ms. Trumble’s former job duties be re-classified to obtain a retroactive payment for her.

[43] Costs are presumptively awarded to partially indemnify the successful party in a lawsuit. In my view, it is fair and reasonable for Ms. Trumble to pay $7,000 plus HST to the Township as partial indemnity for the costs she caused it to incur in this proceeding. I therefore order her to do so within thirty (30) days.

Myers J

I agree _______________________________

C. McLeod RSJ

I agree _______________________________

Leiper J

Released: May 29, 2024

CITATION: Trumble v.Pay Equity Hearings Tribunal, 2024 ONSC 3036

DIVISIONAL COURT FILE NO.: 2813/23

DATE: 20240529

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

C. MacLeod RSJ, Myers, and Leiper JJ.

BETWEEN:

JENNIFER TRUMBLE

Applicant

– and –

PAY EQUITY HEARINGS TRIBUNAL and THE CORPORATION OF THE TOWNSHIP OF LIMERICK

Respondents

REASONS FOR JUDGMENT

Myers J

Released: May 29, 2024