Ontario Nurses' Association v. The Women's Christian Association of London, Operator of Parkwood Hospital, 1995 CanLII 7032

0188-91 Ontario Nurses' Association, Applicant -and- The Women's Christian Association of London, Operator of Parkwood Hospital, Respondent -and- Attorney General for Ontario, Intervenor

Appearances: Anne Marie Delorey and Mary Cornish for Ontario Nurses Association; Brian O'Byrne and Brand Hollister for Women's Christian Association of London, Operator of Parkwood Hospital; Lori Sterling for The Attorney General of Ontario

Before: Beth Symes, Chair and Members Sharon Laing and Susan Genge

Cite As: Parkwood Hospital (21 July, 1995) 0188-91 (P.E.H.T.)

DECISION OF BETH SYMES, CHAIR, JULY 21, 1995

This is an application by the Ontario Nurses' Association ("ONA") to set aside an Order of the Review Officer dated October 30, 1990, in which the Review Officer determined that the Manager of Physical Operations was the male job class of equal or comparable value to the female job class, registered nurse, in the establishment of the Respondent, The Women's Christian Association of London, Operator of Parkwood Hospital ("Parkwood").
ONA challenged the constitutionality of section 6(3) of the Pay Equity Act, R.S.O. 1990, c.P.7, as amended, (the "Act") and gave notice to the Attorney General of Ontario ("Attorney General") of the constitutional question. The Attorney General participated as a party throughout these proceedings.

Background

The purpose of the Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes. The Act requires employers, such as Parkwood, to establish and maintain compensation practices that provide for pay equity. The Act directs that systemic gender discrimination in compensation is to be identified by undertaking comparisons between each female job class and the male job classes in the workplace in terms of compensation and the value of the work performed. The Act further directs that the criterion to be applied in determining the value of work is the composite of skill, effort, and responsibility normally required in the performance of the work and the conditions under which the work is normally performed.
ONA is the bargaining agent for the graduate and registered nurses employed at Parkwood. The Act requires the employer and the bargaining agent to negotiate in good faith on the gender neutral job comparison system to be used for comparing male and female jobs and for the pay equity plan for the bargaining unit.
ONA and Parkwood agreed to use the Hubbard Revo-Cohen (H.R.C.) system to evaluate the male and female job classes at the hospital. H.R.C. is a point factor system in which job information for each job was gathered from incumbents using a detailed questionnaire. Over an eight week period, a Joint Evaluation Committee, composed of representatives of ONA and Parkwood evaluated the male and female jobs. The evaluations ranged from a low of 2086 points to a high of 3691 points, a 1605 point spread. Neither ONA nor Parkwood has challenged the evaluation process.
The Joint Evaluation Committee evaluated 21 nursing jobs which ranged from 2844 to 3117 points. The parties agreed to identify a "benchmark" position for registered nurses as the arithmetic average for the 21 positions. The Review Officer calculated this average as 3027 points. Parkwood advised the Tribunal that this calculation was in error, and that the correct average for the benchmark position is 3037 points. The Tribunal has used Parkwood's calculation.
The parties were unable to agree on the appropriate male comparator for the registered nurse position and therefore have not agreed upon the pay equity plan for the bargaining unit.
To determine comparability, Parkwood divided the jobs into 17 bands, of 100 points each. The registered nurse fell into band 10. There were two male comparators in band 10: the Director of Pastoral Care at 3069 points ($37,986); and the Manager of Physical Operations (McCormick Home) at 3063 points ($41,665). At the hearing, all parties agreed that although the Director of Pastoral Care was a male job, it had been historically undervalued and therefore should not be used for pay equity purposes. Parkwood chose the Manager of Physical Operations as the appropriate male comparator. This male comparator resulted in a pay equity adjustment for registered nurses of $1.84 per hour or $3,579.40 per annum.
ONA objected to this male comparator and filed a complaint with the Pay Equity Commission. A Review Officer was appointed, met with the parties and tried to effect a settlement. She was unsuccessful and ordered the appropriate male comparator to be the male job closest in value to the registered nurse. The closest male comparator was the Manager of Physical Operations at 3063 points. The pay equity adjustment for registered nurses was $1.84 per hour or $3,579.40 per annum.
ONA requested a hearing and asked the Tribunal to set aside this Order.
The parties do not agree upon the appropriate method of comparison between the point value score for the registered nurse job class and the point value scores for the male job classes. The parties are unable to agree upon the appropriate male comparator. Nor do they agree upon the method by which the resulting wage adjustment for the registered nurse job is to be determined.
It is ONA's position that the Review Officer's choice of the Manager of Physical Operations is an arbitrary and inappropriate male comparator which results in the registered nurse job continuing to attract a lower wage than a comparably valued male job class. ONA states that this choice perpetuates a continuing and entrenched discriminatory effect upon the wages of the female job class of registered nurses.
ONA submits that the appropriate male job class, and the male comparator which effectively eliminates any gender effect, is the Director of Nutrition and Food Services, a lower valued male job at 2910 points which is paid $51,919.00. ONA submits that the proper pay equity adjustment is $7.10 per hour or $13,833.40 per annum. ONA submits that the Review Officer's choice of male comparator under section 6(3) of the Act is a violation of section 15 of the Canadian Charter of Rights and Freedoms.
Parkwood submits that the Review Officer's order is reasonable in these circumstances and is consistent with the Act.
The Attorney General supports the constitutionality of section 6(3) of the Act and asks that ONA's application to have the Tribunal declare section 6(3) of the Act to be unconstitutional be dismissed.

Purpose of the Act

The purpose of the Act is set out in section 4(1):

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

The Act sets out the mechanics of implementing the reprisal of fairly compensating female workers. The Court of Appeal has said:

... Nowhere does the Act specifically define "pay equity" or what circumstances indicate when it has been achieved. One can infer from the articulated purpose of the Act as set out in s. 4(1), that since pay equity is an objective for redressing systemic gender discrimination in compensation for work, it is achieved in a workplace when any such discriminatory compensation practices have been remedied. One can also infer from the extensive provisions of the Act setting out the requisite implementation strategies, that the achievement of pay equity (or the redress of discriminatory practices) is a highly specialized and integrative undertaking blending aspects of labour relations, compensation practices, employment law, and human rights.

Ontario Nurses' Association v. Ontario (Pay Equity Hearings Tribunal) (1995), 1995 CanLII 1488 (ON CA), 23 O.R. (3d) 43, per Abella, J.A at p. 55.

The challenge for the Tribunal in this case is to fashion a mechanism for determining whether a female job class is comparable to a male job class which is consistent with the statute which will remedy the discriminatory compensation practices at Parkwood.

What is the appropriate male comparator?

There are many job comparison systems which the parties could have used to compare the value of male and female job classes at the hospital. The parties have negotiated and agreed to use a point factor job evaluation system. Having made that choice, the parties are now unable to agree on how to determine which male job class is comparable to the female job class of registered nurse. Given the parties' choice of a point factor system, Parkwood, ONA, the Review Officer and the parties' experts examined four options to determine comparability:

i) comparison of job evaluation points;

ii) closest male comparator;

iii) banding; or

iv) male wage curve

The Tribunal has examined each option in turn to determine which option is most consistent with the purpose and intent of the Act. The Court of Appeal has said that section 6 of the Act merely sets out the minimal requirement for the achievement of pay equity, namely that the job rate for the female job class be at least equal to the rate paid for a comparable male job class. The Court went on to say that redressing systemic gender discrimination is not a linear determination, but instead involves a kaleidoscopic interplay between a variety of factors and the statutory provisions: Ontario Nurses' Association, supra, at p. 56.

i) Comparison of job evaluation points

The comparison of job evaluation points proposed by ONA, requires that a male job class is comparable to a female job class only if the male job class has the same point value as the female job class. ONA submits that if there is no male job class with exactly the same job evaluation points as the female job class, then the appropriate male comparator is the highest paid male job class with lower job evaluation points. In this case, there is no male job class with exactly 3037 points. ONA then says that pursuant to section 6(3) of the Act, the appropriate male comparator must be the highest paid male job class which is performing work of lower value than the female job class. In this case, the highest paid male job class performing work of lower value than that of registered nurses is the Director of Nutrition and Food Services at 2910 points who is earning $51,919.00.
A comparison of job evaluation which requires that two jobs have identical points before they can be said to be comparable makes no sense in this job comparison system. The Joint Evaluation Committee determined the appropriate point value for each job class in the hospital. This was not an exact science. In fact, the Committee's evaluations ranged over 1605 points. It is not possible for such a system to differentiate meaningfully between a job at 3037 points and another at 3036 or 3038 points. These are distinctions without a difference. Job evaluation is not that finely tuned. Section 6(1) of the Act provides:

For the purposes of this Act, pay equity is achieved when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value. (emphasis added)

To require that two job classes have exactly the same point value before they can be compared reads out the statutory provision that the jobs be of equal "or comparable value". In addition, ONA's proposal may well produce anomalous results. Higher paid males of lower value may be compensated way out of proportion in comparison to other male jobs in the hospital. In this case, the Director of Nutrition and Food Services is paid substantially more than other male job classes of higher value. To adjust the female job class to an anomalous male is inconsistent with a systemic approach to compensation. Finally, the purpose of this Act is to redress systemic gender discrimination in compensation. The Act acknowledges that the inequities which currently exist for women are not the result of deliberate or direct discrimination, but rather are the product of systemic barriers and practices. To remedy systemic discrimination it is necessary to adopt remedies which address systemic problems. To limit the comparison of male and female job classes to those of exactly the same point value has no systemic merit. The experts agreed that this approach was inconsistent with compensation theory and practice. For all of these reasons, the Tribunal concludes that comparing job evaluation points is not appropriate to determine the male comparator.

ii) Closest male comparator

The Review Officer determined that the appropriate male comparator was the male job class which was closest in point value to the registered nurse, that is the Director of Physical Operations at 3063 points.
Dr. Ames and Dr. Steinberg, who gave expert evidence for ONA, stated that the closest male comparator approach used by the Review Officer is a system which is virtually unknown in compensation theory and practice. Dr. Kervin, the expert witness called by the Attorney General, testified that this approach tends to decrease pay in respect of worth thus building in gender bias into pay.
Nothing in the Act contemplates using the closest male job class as the definition for comparable. The closest male job approach has real potential to produce anomalous results by forcing a comparison to a male job class whose compensation is inconsistent with the wage policy for other male jobs in the hospital. This anomaly could be detrimental to the employer, to the incumbents in the female job class, and to the compensation system. Finally, the choice of the closest male comparator is totally arbitrary and inconsistent with a systemic approach to remedy gender discrimination. For all of these reasons, the Tribunal concludes that the closest male comparator is not an appropriate method to determine the appropriate male comparator.

iii) Banding

Banding, the option which was chosen by Parkwood, is a tool used in compensation theory and practice to group comparable jobs which have been evaluated using a point factor job evaluation system. Dr. Weiner, an expert witness called the Attorney General, testified that compensation practitioners may choose to group or band all jobs within a specified range of points. Parkwood's proposal to compare jobs which are within a specified 100 point band is consistent with current compensation practices. Dr. Weiner testified that the rational for banding jobs is that a point factor job evaluation system, such as H.R.C., is not able to make meaningful distinctions between jobs unless there is a significant point spread between those jobs. Dr. Weiner testified that if an employer chooses to bands jobs, then this compensation practice requires the employer to provide the same pay to all job classes within the band. That is, if it is not possible to distinguish between the value of job class evaluated at 3037 points and one evaluated at 3075 points, then these job classes should be compensated the same. The object of this compensation tool is to eliminate discrepancies in compensation which are not reflective of real differences in value to the employer. The theoretical underpinning of banding is to create a compensation system in which wages are based on value but which does not differentiate in compensation amongst job classes in the same pay band. That is, banding is a compensation tool used to simplify a point factor comparison system.
The approach proposed by Parkwood reduces the 1605 point spread over all jobs into 17 bands. Parkwood states that for pay equity purposes all jobs in a band will be considered to be of comparable value. But Parkwood has not used banding in its compensation system. For the past ten years, Parkwood had used the HAY system to establish the compensation levels for its management level positions. HAY is a job evaluation system in which the compensation paid depends upon the point value for that position. Moreover, Parkwood has no intention of changing this system and will not pay all job classes in a band the same.
Parkwood has used banding as a means of defining comparable male jobs. That is, all male jobs in band 10 were considered to be comparable to registered nurses. Parkwood then took the male job of lowest pay in the band to determine the pay equity adjustment. Parkwood justified this choice on the basis of section 6(3)(a) of the Act which provides that pay equity is achieved when the job rate for the female job class is at least as great as the lowest job rate for male job classes of equal or comparable value. ONA objects to this method as failing to redress systemic discrimination in compensation for female job classes. In the alternative, ONA states that the use of the lowest paid male comparator is contrary to section 15 of the Charter.
Although the approach of banding to determine job classes of comparable value is not set out in the Act, the Tribunal accepts that banding is a well recognized tool which is used in compensation practice. But the Tribunal is concerned that the method as proposed by Parkwood, to treat all job classes in a band as comparable but not to adjust the compensation, is inconsistent with compensation theory and practice and will perpetuate gender discrimination. To move the female job class to the lowest job rate in the band while leaving all other male job classes at higher rates, even though they have been determined to be of equal value, will mean that the female job class is consistently underpaid and that this gender inequity will be built into the compensation system. The banding method proposed by Parkwood also has the possibility of producing anomalous results in that the lowest paid male in a band may be an anomaly and may be paid less than all the male jobs in a lower band. If the female job in band 10 is compared to the lowest paid male job in band 10 then, after the pay equity adjustments, the female jobs in band 9 may well be paid more than the female job class in band 10. This is inconsistent with the very foundation for banding and inconsistent with a systemic approach to compensating job classes on the basis of value to the employer. The Tribunal concludes that the banding method as proposed by Parkwood is inconsistent with the purpose of this Act. For these reasons the Tribunal rejects the banding approach proposed by Parkwood to determine the appropriate male comparator.

iv) Male wage curve

All of the expert witnesses recommended to the Tribunal that, in this case where the parties have completed a point factor job evaluation system, the best system for determining the appropriate male comparator is to use a common statistical technique called regression analysis to draw a wage curve which captures the male pay policy for the employer. This approach begins with the assumption that male job classes are properly paid. That is, the compensation for the male job classes reflects the value of those jobs to the employer. The statistical technique fits a wage curve to the actual compensation paid. The best fit is calculated to minimize the square of the differences between the actual compensation and the proposed wage curve for each value of the male job classes. To be able to accurately capture the male wage policy there must be sufficient male jobs from the evaluation process and the male jobs must be distributed across the value spectrum. The experts agreed that there were sufficient male job classes and that they were adequately distributed so that a regression analysis of the male job classes would result in an accurate depiction of the male wage policy for Parkwood. All of the experts testified that if these conditions were met, then the male wage curve was the job comparison method most appropriate to compare female job classes to male job classes of equal or comparable value. The Tribunal heard evidence that most compensation systems in Canada and the United States for employers as large as Parkwood, use the male wage policy approach. The regression analysis produces a mathematical equation which expresses wages as a function of value. Graphically, a comparison is then made between female and male job classes, by moving each of the female job classes to the male wage curve. Mathematically, the value of the female job class is plugged into the equation to determine the appropriate pay equity adjusted wage. The male wage curve which most accurately captures the male wage policy of the employer should be used.
In this case, the experts did not agree which mathematical equation best captured the male wage policy at Parkwood. The options included: a straight line, a kinked or discontinuous line, and a quadratic. No one proposed fitting a higher polynomial to the data. Dr. Kervin, the expert called by the Attorney General, testified that it was not very common to fit a cubic equation to wage data, and that, in his opinion, if the increase in fit is very small the added complexity of the equation is not worth the price.
Dr. Weiner testified that it would only be appropriate to use a kinked or discontinuous line if Parkwood had two different pay policies for the employees in the hospital. For example, there might be one pay policy for bargaining unit employees and a separate pay policy for senior management. Brad Hollister, the Vice President of Human Resources at Parkwood testified that there was one wage policy for all the employees at the hospital. The Tribunal therefore concludes that there is no justification for a kinked or discontinuous pay line for Parkwood.
The parties could not agree whether the simpler straight line or the more complex quadratic curve best captured the male wage policy at Parkwood. Dr. Ames testified that, in her opinion, the straight line was a sufficient fit to this data and that the more complex quadratic equation was not warranted. Dr. Kervin testified that, in his opinion, the curvilinearity of the data was caused by one male job. One option was to eliminate that job from further consideration. The Tribunal rejects that option. That male job was well paid. The elimination of a well paid male job from further consideration would fail to accurately reflect the male pay policy at Parkwood and would understate the gender discrimination in the hospital's compensation practices. The Tribunal is persuaded that all male jobs should be included in the calculation of the male pay policy. Dr. Kervin performed a number of sophisticated statistical techniques to measure the relative fit of the straight line and the quadratic. The R2, which is a statistical measure of fit, for the straight line was 0.760 and for the quadratic was 0.803. The gender effect for the straight line was -3.28 and for the quadratic was -2.35. The R2 for both the straight line and the quadratic are high thus indicating that both are accurate estimators of the male wage policy. The registered nurse job class is in the middle of the range of job values at the hospital. Dr. Kervin testified that if a quadratic were used, it would underestimate the gender effect for female job classes at or near the middle of the range. Based on all the information, the Tribunal is not persuaded that minimal increase in fit warrants the use of the more complex quadratic.
The Tribunal concludes that the most appropriate remedy for systemic gender discrimination in this case, where the parties have agreed to evaluate male and female job classes using a point factor job evaluation system, is to use the wage line approach which captures the male pay policy used by the hospital. In this case, the male wage line approach integrates aspects of labour relations, compensation practices, employment law, and human rights. The appropriate male comparator is then determined by moving female job classes to the male wage line.
In light of the nature of this decision it is neither necessary nor wise to answer the constitutional question posed by ONA.
The Tribunal hereby revokes the Order of the Review Officer dated October 30, 1990.
The Tribunal hereby directs the parties to adjust the registered nurse job class to the male wage line whose equation is:

wages = - $30.60 + points * 0.01868

The benchmark registered nurse position has been valued at 3037 points. Therefore, to achieve pay equity the wage for the registered nurse class must be adjusted to $26.13 per hour effective January 1, 1990.

DECISION OF SUSAN GENGE AND SHARON LAING, JULY 21, 1995

We dissent from the decision of the Chair of the Panel in this matter. We are unable to agree with the analysis and subsequent conclusions. Further, we find the Tribunal is without jurisdiction to order the stated remedy. Our reasons follow.
In paragraph 35 the Chair states: "The Tribunal concludes that the most appropriate remedy for systemic gender discrimination in this case, where the parties have agreed to evaluate male and female job classes using a point factor job evaluation system, is to use the wage line approach which captures the male policy used by the hospital. In this case, the male wage line approach integrates aspects of labour relations, compensation practices, employment law, and human rights. The appropriate male comparator is then determined by moving female job classes to the wage line." In paragraph 19, she notes that "the parties' experts examined four options to determine comparability: i) comparison of job evaluation points, ii) closest male comparator, iii) banding, iv) male wage curve".
The Chair characterizes the job to job method of comparison as a method which requires that a comparable male job class have identical job evaluation points. It is unclear why this characterization of job to job comparison was used, but in any event it was not proposed by ONA or any of the parties in this case and we therefore make no further comment.
The Chair rejects the "closest male comparator" method which was the approach used by the Review Officer at Parkwood Hospital. The Chair claims that this method is inadequate because:
"nothing in the Act contemplates using the closest male job class as the definition for comparable";
it has potential to produce anomalous results, which could be detrimental to the employer or the female job class; and
the choice is "arbitrary and inconsistent with a systemic approach to remedy gender discrimination".
The Chair also rejects a "banding" approach. She argues that although it is not set out in the Act, banding is well recognized in compensation practice. She rejects banding in this case however, because Parkwood's proposal to "treat all job classes in a band as comparable, but not to adjust the compensation" for the male job classes, is "inconsistent with compensation theory and will perpetuate gender discrimination". She also suggests that banding might result in anomalies. In our view, there is nothing in the Act which requires employers to move all of the comparable male jobs to the same compensation level as a result of pay equity job comparisons.
Although the Chair in her decision rejects both approaches, the Pay Equity Act does mandate a job to job method of comparison. Either the "closest male comparator" or a "banding" approach might, in certain factual situations, be "appropriate" under the Act, since both provide methods of comparing one job to another. The rationales given by the Chair for the rejection of banding and the closest male comparator are not sufficiently based in law or on the evidence presented in this case.
The conclusion of the decision, that it is "most appropriate" to move the female job class to the male wage line, because these parties have used a point factor job evaluation system is not sustainable. In other words, while a wage line methodology may be "most appropriate" in the view of the Chair, the Tribunal has no authority to force parties to adopt the "most appropriate" method. It may, for example, be "most appropriate" for a single establishment to have a single job evaluation system, regardless of the number of bargaining units. Since the Act requires comparison systems and pay equity plans based on bargaining unit, however, we do not have the authority to order one job evaluation system on this basis, any more than we can order job class to wage line comparisons Further, there is no evidentiary foundation, expert or otherwise to support the chair's assertion that the male wage line approach integrates aspects of labour relations, compensation practices, employment law, and human rights.
As well, we disagree with the Chair's conclusion that the Tribunal has the jurisdiction to order a wage line method of comparison. The Act mandates a job class to job class method of comparison. In the absence of a finding that the job class to job class approach is in violation of the Charter, the Tribunal has no authority to order parties to use a job class to wage line method. While there was much evidence and argument led in the hearing concerning the relationship of the Charter to the facts in this case, the Chair does not rely on that evidence or argument. Although interesting, the recent Court of Appeal decision in Ontario Nurses' Association v. Ontario (Pay Equity Hearings Tribunal) is not helpful for resolving the issues placed before this panel in this case. This decision does not in any way purport to extend the Tribunal's jurisdiction beyond that which is provided by the Act. Furthermore, we are not persuaded that the job to job approach per se, is in violation of the Charter, in this case. In short, it is our view that the Tribunal does not have the jurisdiction to order this Employer to adopt a job class to wage line approach.
Finally, in this hearing which lasted many months, the parties spent considerable time and energy analyzing the applicability of the Charter to the facts at Parkwood. Although as the Chair indicates in paragraph 36, her decision means that the Charter does not have to be invoked, some commentary about the Charter arguments advanced by the parties is appropriate, particularly since there does not appear to be any other basis for the conclusions reached by the Chair in this matter.

DECISION OF SUSAN GENGE, JULY 21, 1995

The Ontario Nurses Association applied to the Pay Equity Hearings Tribunal to set aside a Review Officer's Order which found, under section 6(1) of the Pay Equity Act, that there was one comparable male job class, the Manager of Physical Operations, for the Registered Nurses employed at Parkwood Hospital. It is ONA's contention that this Order is "unlawful" because it violates the equality guarantees enshrined in the Canadian Charter of Rights and Freedoms, specifically sections 15(1), 28 and 7 of the Charter. ONA argues that the Officer's interpretation of section 6(1) "permits the perpetuation of sex-based discrimination in payment of wages to female-dominated job classifications". (Final Written Submissions on behalf of the Ontario Nurses Association, at paragraph 12) ONA suggests that alternative interpretations of sections 6(1) and 6(3) are available which would not offend against Charter principles. If the Tribunal is not persuaded on any of these alternatives, then as a final alternative, it is ONA's submission that section 6(3)(a) of the Act, is in violation of the Charter and should be "read down" by the Tribunal.
The central issue in this case then, is the proper interpretation of section 6 of the Pay Equity Act in the circumstances of its application to the facts at Parkwood. The Attorney General of Ontario as Intervenor, takes no position with respect to the appropriate interpretation of section 6, within the parameters of the Pay Equity Act. The Attorney General's intervention focussed exclusively on the constitutional issues raised in ONA's application.
The disputed clauses of section 6 of the Act read as follows:

6(1) For the purposes of this Act, pay equity is achieved when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value.

6(2) Where there is no male job class with which to make a comparison for the purposes of subsection (1), pay equity is achieved when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate of a male job class in the same establishment that at the time of comparison had a higher job rate but performs work of lower value than the female job class.

6(3) If more than one comparison is possible between a female job class in an establishment and male job classes in the same establishment, pay equity is achieved when the job rate for the female job class is at least as great as the job rate for the male job class,

(a) with the lowest job rate, if the work performed in both job classes is of equal or comparable value; or

(b)with the highest job rate, if the work performed in the male job class is of less value.

Section 6 of the Act then, sets out a number of alternatives by which employers and bargaining agents can determine whether pay equity has been achieved in an establishment. Basically, section 6(1) deals with a situation in which a female job class is found to be of equal or comparable value to a male job class. In such a situation, pay equity is achieved when the job rate for the female job class is at least equal to the job rate for the comparable male job. The terms "equal" and "comparable" are not defined.

The Review Officer in this case found under section 6(1) that there was one comparable male job class. The parties at Parkwood Hospital used a point factor evaluation system to determine the value of the job classes. The Review Officer decided that because the Manager of Physical Operations was the "closest male comparator" in terms of the points assigned under the system, it was therefore the male job class which was equal or comparable to the female job class of Registered Nurse. The male job class, Director of Pastoral Care was very close to that of the Manager of Physical Operations in assigned point value, while paid at a lower job rate. Although the Act provides in such a situation, that the lower valued male job could be the comparator, all parties rejected this alternative. Their rationale was that because of the historical association of pastoral care with works of charity, it was likely that this male job class was itself underpaid for the actual value of the work performed.
The Manager of Physical Operations received 3063 points; the Registered Nurses received 3027 points. The 3027 point score was arrived at by the Review Officer by averaging the points received by a number of Registered Nurse job classes. The range of points for Registered Nurse job classes was from a low of 2844 for the RN ALZ to 3117 for RN CLIN SE. Parkwood Hospital indicated that the Review Officer's calculation is in error, and the Registered Nurses should have been averaged at 3037 points. The 3027 point figure was however used throughout the hearing.
The parties, in an Agreed Statement of Fact, Appendix A, set out seven potential male comparators, including the Director of Pastoral Care. For ease of reference, the Chart is reproduced here.

APPENDIX A

JOB CLASS GENDER, JOB RATE AND POINT SCORE

PARKWOOD HOSPITAL

T A B L E

As at June, 1989

** As averaged by the Review Officer

The Review Officer defined "comparable" as "closest in points". In the circumstances of this case, the result of that decision is that the Registered Nurses' job rate is entrenched at a lower level than five male job classes whose value to the organization has been determined to be less than that of the Registered Nurses' job class. This decision makes the relationship between the value of work and compensation exceedingly murky to say the least and appears to set up an inverse relationship between value and compensation. Registered Nurses' work cannot be properly compensated according to value, when lower valued male work is consistently compensated more highly. The Review Officer's decision to find one comparable male job class and to find that "comparable" means "closest" has the effect of imposing and validating a wage structure which more highly compensates lower valued male jobs, and defines this inverse relationship as pay equity.
As has been noted in numerous Tribunal decisions, following the guidance provided by superior courts including the Supreme Court of Canada, the proper approach in interpreting anti-discrimination legislation, such as the Pay Equity Act is to examine the section in question within the context of the overriding purpose of the Act.
The Pay Equity Act is remedial legislation. As indicated by section 4(1) of the Act, its purpose is to "redress systemic gender discrimination in compensation for work performed by employees in female job classes". Furthermore, section 4(2) provides: "Systemic gender discrimination in compensation shall be identified by undertaking comparisons between each female job class in an establishment and the male job classes in the establishment in terms of compensation and in terms of the value of the work performed."
The presumption of the Act is that male jobs and male job rates are the standard against which female jobs are to be measured and compared, both "in terms of compensation and in terms of the value of the work performed." If the relationship between value and compensation is different between male and female job classes, and advantageous to the male job classes, then systemic gender discrimination is identified. The purpose of the Act then is to redress such systemic gender discrimination once it has been identified.
Section 6 is designed to provide direction to parties about how wage rates are to be adjusted to ensure the achievement of pay equity. In doing so, the section sets out a number of alternate approaches to allow for the completion of the comparisons of male and female jobs provided in section 4.
The Review Officer's definition of "comparable" as "closest" under section 6(1), is a very narrow reading of section 6 indeed. The Courts have determined that such narrow interpretations in relation to anti-discrimination legislation are to be avoided. In the Action Travail case, dealing with federal human rights legislation for example, the Court said:

A narrow restrictive interpretation which would defeat the purpose of the legislation, that is, the elimination of discrimination, should be avoided.

Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) [1987] (S.C.R.) at 1138.

Furthermore, administrative tribunals, such as the Pay Equity Tribunal are required to consider the equality provisions of the Charter in statutory interpretation. The argument, advanced by Krindle J. of the Manitoba Court of Queen's Bench is persuasive. It also makes common sense.

In the final analysis however, the provisions of s.15(1) of the Charter are so important to the definition of this country that, in my opinion, where a statute admits of two possible interpretations, it would be patently unreasonable for an administrative tribunal to interpret the statute in a manner which creates or perpetuates discrimination.

Manitoba Council of Health Care Unions v. Bethesda Hospital, 1992 CanLII 8560 (MB QB), [1992] 2 W.W.R. 144 (Q.B.) at 156.

The narrow interpretation adopted in the Review Officer's Order has exactly this effect of creating or perpetuating discrimination. It does so by putting in place a pay structure at Parkwood Hospital which sanctions, in the name of pay equity, higher pay for a group of lower valued male jobs. This result is antithetical to the purpose of the pay equity legislation.
The Review Officer's analysis is not the only possible approach however, since the evidence in this case allows for a different interpretation of the application of section 6. The parties at Parkwood Hospital used a point factor job evaluation system. The information on jobs was collected through questionnaires, which were completed by the employees and analyzed and evaluated by a joint union/employer job evaluation committee. The parties were unable to complete the process of determining the wage adjustments under the Act. The issues the parties discussed at Review Services included "point band proposals, grouping of job classes, job evaluation points, weighting schemes, rating schemes and potential comparators". (Agreed Statement of Facts, at paragraph 38) The Chart reproduced at paragraph 6 is described by the parties as follows: "The job evaluation process resulted in point scores for the RN's and the potential male comparators. Attached as Appendix "A" is a chart which outlines the job classes by gender, job rate and point score (as determined by the Review Officer)". (Agreed Statement of Facts, at paragraph 40)
In these circumstances, it is both more realistic and more consistent with the purpose of the Pay Equity Act and with the Charter to find that there is more than one comparison possible between the Registered Nurse job class and the potential male comparator job classes in the establishment.
It is more realistic for a number of reasons. As the expert witnesses in this case testified, job evaluation is a subjective process. It is not scientific and is subject to the results of human error. Establishing comparators has a subjective component, as does assigning factor weights. In this case, while ONA presented evidence based on the weights developed by the employer and used by the Review Officer, they did not necessarily agree that the weighting scheme was gender neutral. The points assigned to job classes must be seen then, as approximations to the value of the job, rather than as an exact representation of the job's value. As well, the point value for the Registered Nurse job class is itself an average figure, and only representational. For these reasons, it is more realistic to accept that there may be a range of potential male job class comparators for the Registered Nursing job class.
Under the Pay Equity Act where "more than one comparison is possible between a female job class in an establishment and male job classes in the same establishment" section 6(3) applies. The section sets up two scenarios in this case. If there is more than one job class of "equal or comparable" value, then the job rate for the female job class is adjusted to the lowest male job rate. If there are male job classes of lower value, then the job rate of the female job class is adjusted to the highest paid of the lower valued male job classes.
There is nothing in the Act which requires that the search under section 6(3)(a) must be exhausted before moving to 6(3)(b). Nor does the language of section 6(3)(b) reserve comparisons to situations where the only comparators are male job classes of lower value. To adopt a reading of the section that imports a requirement to follow the subsections in sequence would, in this case, entrench a lower wage structure for the female job class. Such a narrow construction would consequently reinforce systemic gender discrimination in the wages paid, rather than redress the discrimination as required by the Act.
The appropriate approach in this case should be then, to find that, since more than one comparison is possible, either 6(3)(a) or (b) comes into play, whichever is more consistent with the purpose of the Pay Equity Act and Charter equality principles. In this case, ending the analysis at section 6(3)(a) entrenches identified discrimination, because it would allow a group of lower valued male job classes to continue to be more highly paid than a comparable female job class. Therefore, the provisions of section 6(3)(b) should be followed and the highest paid of the lower valued male job classes becomes the comparator for the job rate adjustment.
For these reasons, based on the evidence and the point values assigned as a result of the evaluations conducted by the parties, the appropriate male comparator for the Registered Nurses at Parkwood is the Director of Nutrition and Food Services at a job rate of $51,919 per annum. The Review Officer's Order is revoked.

DECISION OF SHARON LAING, JULY 21, 1995

This is an application by the Ontario Nurses' Association requesting the revocation of a Review Officer's order. The order determined, pursuant to section 6(1) of the Pay Equity Act, that the male job class comparator for the applicant's female job class of Registered Nurse was the Manager of Physical Operations within the hospital establishment. The Ontario Nurses' Association challenges the constitutionality of section 6 of the Act and alternatively the validity of the Review Officer order.
The respondent, Parkwood Hospital, takes the position that the Review Officer order is lawful, reasonable and appropriate. It further contends that the results that flow from the order accord with the purpose of the Act. The hospital takes no position with respect to the constitutional issue.
The challenge to the constitutionality of section 6 of the Act necessitated the participation of the Attorney General of Ontario. The submissions of the Attorney General were, for the most part, limited to the constitutional issue. The Attorney General supported the constitutionality of the challenged provisions and requested dismissal of the Ontario Nurses' Association's application.
The facts of the case are not at issue. Therefore a summary will suffice.
The Ontario Nurses' Association and Parkwood Hospital agreed to the use of the Hubbard Revo-Cohen point factor system as their gender neutral comparison system.
Through a series of joint meetings the female and male job classes were evaluated and assigned appropriate points as a reflection of relative worth. There is no challenge to this process or the resulting points.
Upon agreement the Registered Nurse job class received a benchmark assignment of 3027 points. During the course of the hearing, the hospital drew the panel's attention to a calculation error which would move the benchmark to 3037 points.
The hospital proposed a banding scheme to determine the male job class comparator. The scheme included bands of 100 points. The Registered Nurse and two male job classes fell within the same band. There was joint agreement to remove the male job class of Director of Pastoral Care from the potential comparators, leaving the Manager of Physical Operations as the hospitals decided choice.
The Manager of Physical Operations received 3063 points and earned an annual salary of $41,665. The annual pay equity adjustment for the Registered Nurse job class was $3,579.40.
The Ontario Nurses' Association objected to the hospital's choice of male job class comparator. It preferred the male job class of Director of Nutrition and Food Services. This job class received 2910 points and fell within another band. Its annual salary was $51,919.00. The Ontario Nurses' Association submits that an annual pay equity adjustment of $13,833.40 is appropriate for its female job class of Registered Nurse.
The parties, during the course of the hearing, provided the panel with the salaries and point scores of five additional male job classes. Neither the hospital nor the Ontario Nurses' Association submitted those five job classes as potential male comparators.
At the heart of the dispute between the parties is the interpretation of the term "comparable value". The relevant portions of section 6 of the Act provide that:

(a) with the lowest job rate, if the work performed in both job classes is of equal or comparable value; or

(b) with the highest job rate, if the work performed in the male job class is of less value.

It is instructive then, to look at the scheme of these provisions. Section 6(1) of the Act defines when pay equity is achieved, it requires a job class to job class comparison within the same establishment. It further requires the equalization of job rates when the female job class and a male job class are found to be of equal or comparable value. Upon equalization of the job rates, the legislation contemplates that the purpose of the Act (to redress systemic gender discrimination in compensation for work performed by employees in female job classes) has been achieved. The Act does not specify which male job class is preferable or most suited for comparison, nor does it specify a method for determining comparability. This remains in the hands of the parties. There is no intention or provision requiring the female job class to receive a wage increase of a certain magnitude in order to validate the comparison.
Section 6(2) addresses a situation where no male job class is available for comparison. That is not the situation before us and therefore, I make no further comment.
When the prerequisite of more than one possible comparison has been met, section 6(3) specifies two routes for achieving pay equity. Section 6(3)(a) requires a further predetermination of equal or comparable value before the female and male job class rates are equated. Section 6(3)(b) requires the predetermination that comparability does not exist and therefore, the female job class rate is adjusted to the lower valued, higher paid male job class.
The section 6(3) provisions of the Act are provided for circumstances which remain unresolved by the application of section 6(1). One cannot determine a result under section 6(1) and nonetheless continue to apply section 6(3).
The language and structure of section 6 of the Act are sequential in nature. As one progresses through the provisions there is an assumption the former did not apply.

How then does section 6 apply to the Parkwood facts?

In this case neither party took issue with the gender neutral comparison system nor the resulting points it generated. I therefore find that the points assigned to the female and male job classes were the parties joint reflection of relative worth in their establishment. On that basis, the female job class of Registered Nurse received a benchmark 3027 points (corrected to 3037 points). The male job class of Manager of Physical Operations received 3063 points.
What follows then, is a joint agreement of the parties that the male job class of Manager of Physical Operations is the closest in value to the female job class of Registered Nurse. This result remains unchanged with or without the application of the banding proposal. Clearly, there is no other male job class which is more comparable. This comparison satisfies the intent and language of both section 6(1) and section 4 of the Act.
It is irrelevant that five (or more) male job classes are of less value and higher paid. One can speculate as to why that might exist in these circumstances. There is no requirement or even a suggestion that the male salaries are or should be perfectly aligned and proportional to the joint values assigned by the parties.
Put rather simply, if there is agreement that a number of male job classes are of less value than the female job classes, then there is also agreement that those same job classes are not of comparable value to the female job class. Having found a male job class of comparable value in the same establishment, the search is concluded.
I find it unnecessary to proceed to the 6(3) provisions. To structure or manipulate a higher job rate in the guise of redressing systemic gender discrimination is highly inappropriate.
In this case, there is no evidentiary foundation to invalidate the comparator found pursuant to section 6(1). The parties reflected the relative value of the jobs to be compared in the assignment of points. Disregarding those decisions and looking only to wages renders the joint evaluation process meaningless. This is not the intention of the legislation.
In the circumstances at Parkwood Hospital, the Review Officer found a male comparator within the meaning of section 6(1) of the Act. Having done so, she did not apply the provisions of section 6(2) or 6(3).
Taking the evidence as a whole, and having regard to the provisions and purpose of the Act, I find the approach followed in the order to be consistent with a purposive interpretation of section 6 of the Act. This interpretation allows for a sizeable wage increase which will redress systemic gender discrimination in compensation for this female job class.
Having achieved pay equity as contemplated within the scheme of the Act, this interpretation of section 6 does not offend the Canadian Charter of Rights and Freedoms. I therefore find in unnecessary to remark on the very able Charter arguments advanced in this case.
For these reasons, the Review Officer order of October 30, 1990 is upheld. The Manager of Physical Operations is found to be the male comparator job class for the female job class of Registered Nurse pursuant to section 6(1) of the Act.