Canadian Union of Public Employees, Local 1734 v. York Region District School Board, 2011 CanLII 42915

Canadian Union of Public Employees, Local 1734 v. York Region District School Board

1816-09-PE Canadian Union of Public Employees, Local 1734, Applicant v. York Region District School Board, Responding Party.

BEFORE: Mary Anne McKellar, Vice-Chair.

APPEARANCES: Mary Cornish, Jan Borowy, Anne Didier, Gail Hodgson, Sarah Kahan and Liza McDonald for the applicant; Roy Filion, Bruce Richardson, Chris Tulley, Dorothy Cammaert, Val D’Sa and Danny Bernstein.

DECISION OF THE TRIBUNAL: July 4, 2011

Introduction

1This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”). The applicant union (“Local 1734”) filed an objection with the Tribunal after a Review Officer issued a notice of decision advising that no order would be made against the responding party school board (“the School Board”).

2This hearing commenced before a tri-partite panel of the Tribunal, but before its conclusion, one of the panel members became unable to continue. The parties consented to my sitting alone to complete the hearing.

3This case has issues in common with those addressed in Lakeridge Health Corporation, [2010] CanLII 46187. That decision is the subject of an application for judicial review scheduled to be heard October 5 and 6, 2011.

Order of Proceedings

4A procedural decision (reported at 2010 CanLII 29715) in this matter was issued on May 31, 2010. It provided for the bifurcation of the hearing with only those issues identified in paragraph 5(a) and (b) below to be addressed initially:

5. There appear to us to be three broad issues to be addressed in this application:

(a) Was there an agreement by the applicant not to pursue the question of the difference in structure between the pay grid for the applicant’s bargaining unit and that for the bargaining unit represented by CUPE Local 1196? This is a factual question.

(b) Does the Act require that the pay grid for female job classes in Local 1734 that have an identified male comparator in the CUPE Local 1196 unit to be harmonized with the pay grid attaching to that male job class? This is a legal question.

(c) If the answer to (b) is affirmative, which female job classes are affected by this determination?

Decision

5The application is dismissed, for the reasons that follow.

The Facts

6I heard evidence from the following witnesses: Anne Didier; Liz Carlisle; and Colette Nemni.

7The School Board has collective bargaining relationships with two locals of the Canadian Union of Public Employees (“CUPE”). One is a custodial unit (“Local 1196”) comprised largely of male employees. The other is Local 1734, comprised largely of female employees in clerical and technical classifications.

8The current collective agreement between the School Board and Local 1196 stipulates a wage grid comprised of three steps for each classification. Employees reach the maximum wage rate attaching to their classification in one year. The structure of this wage grid has been in place for many years and preceded the enactment of the Act.

9The current collective agreement between the School Board and Local 1734 stipulates a wage grid comprised of four steps for each classification. Employees reach the maximum wage rate attaching to their classification at the end of three years. The structure of this wage grid has also been in place at least since 1989 but had within a year or so prior to that date consisted as well of a fifth step which the parties had agreed to remove in the course of their collective agreement negotiations.

10A pay equity plan for Local 1734 was concluded on June 16, 1989, and all adjustments required by the plan were made effective January 1, 1989 and were paid in 1989. Some job classes within the Local 1734 bargaining unit were identified as female and some were identified as male. Some of the female job classes in the Local 1734 bargaining unit were compared to male job classes within the bargaining unit or to non-union jobs in the establishment. Some other of the female job classes were compared to male job classes of comparable value in the Local 1196 (custodial) bargaining unit. The issue addressed in this decision relates only to this last group of Local 1734 female job classes.

11The rate of pay for every incumbent in the Local 1734 female job classes compared to Local 1196 male job classes, and each step of the pre-existing Local 1734 wage grid for those female job classes, was adjusted by the same dollar amount. That dollar amount was the difference between the “job rate” (top rate) for the Local 1996 male job class and the job rate for the Local 1734 female job class. Once the plan was implemented, therefore, the female Local 1734 job classes compared to male Local 1196 job classes enjoyed the same rate of pay at the final step in each of the respective wage grids, however, the start rates for these pairs of comparably-valued female and male job classes were different, and their rate of progression (i.e. rate of pay at any temporal increment prior to the final step) was different. From the point the pay equity plan adjustments were incorporated into the Local 1734 collective agreement and thereafter, any new employee hired into a female job class that had been compared to a Local 1196 male job class and received a wage adjustment would be paid less over the life of his or her employment with the School Board than a newly hired employee in the comparable male job class. Using salary rates in effect as of September 2008, Local 1734 calculated that a Local 1734 Health Assistant over the life of his/her employment would be paid $2729.00 less than a Local 1196 Maintenance Person II.

12Subsequent to the conclusion of the pay equity plan in 1989, both CUPE Locals negotiated renewal collective agreements with the School Board. An issue arose between Local 1734 and the School Board (or, more accurately its predecessor) with respect to the question of pay equity maintenance. The factual circumstances giving rise to this issue are set out more fully in the Tribunal’s decision (York Region District School Board v. Canadian Union of Public Employees [1995] 6 P.E.R. 3), but may be generally described as follows for the purpose of the present application. Local 1734 negotiated a three-year collective agreement from January 1, 1989 until December 31, 1992. Local 1196 negotiated a two-year collective agreement from January 1, 1989 until December 31, 1991. It did so without engaging in any strike action. In the next round of bargaining for Local 1196, however, a collective agreement was only concluded following a strike. That collective agreement provided for an across-the-board wage increase of 6.5% in 1992, which exceeded the general wage increase for that year stipulated in the Local 1734 collective agreement.

13The consequence of the differential general wage increases negotiated by the two CUPE locals for 1992 was that those female job classes in the Local 1734 bargaining unit that had been compared for pay equity purposes with male job classes in the Local 1196 bargaining unit would be paid less than those male job classes, unless the wage differential between the classes was impermissible under the Act. Local 1734 complained that it was impermissible and constituted a contravention of the Act’s obligation that pay equity be maintained. (The same complaint was made with respect to the female Local 1734 job classes that had been compared to non-union male job classes, but that need not be referred to for the purposes of this general description of the circumstances that gave rise to the dispute). A Review Officer appointed under the Act agreed with Local 1734’s position and made an order that the differences in compensation arising from the Local 1196 collective agreement increases be redressed. The School Board sought to have the Tribunal revoke the order, taking the position that the wage difference that had developed was permissible under section 8(2) of the Act because it was attributable to a difference in bargaining strength between the two CUPE bargaining units. The Tribunal’s decision, referred to above, issued in January 1995. That decision rejected as premature the School Board’s reliance on bargaining strength, and dismissed the School Board’s application. The difference in the structure of the wage grids for the two bargaining units was not an issue in the Tribunal proceeding, nor had it been addressed in the review Officer’s Order.

14Colette Nemni was the School Board’s Superintendent of Employee Services at the time the Tribunal decision issued, and remained in that position until she left the School Board’s employ in 1999. She testified in this proceeding and identified various documents that she had authored and presented to the School Board Trustees revealing that the School Board had considered various options when it received the Tribunal’s decision. Among the options considered were the following: implement the Tribunal’s decision, which would result in increases for the Local 1734 female job classes that had male comparators in Local 1196; go beyond the requirements of the decision by applying the Local 1196 percentage increase to all Local 1734 jobs; or judicially review the decision. Ultimately the School Board determined that it would implement the decision. Nemni advised Local 1734 (including its president, Liz Carlisle) of this by memo dated February 22, 1995, and included a revised version of the Local 1734 wage grid that incorporated the adjustments required by the Tribunal decision. It was clear from the document, which comprehensively set out what all the collective agreement rates would look like after the implementation, that some Local 1734 job classes would not receive an increase. Simultaneously, CUPE Local 1734 raised with the School Board a question that Ms. Nemni characterized as follows in her report to the Trustees at the School Board meeting held February 23, 1995:

• Dissension amongst the CUPE 1734 union members is acute. Liz Carlisle is under tremendous pressure from her members about the impact of the Tribunal’s decision.

• Staff is sensitive to the Trustees’ objective of resolving this dispute amicably, however, there are some new developments which must be brought forward for discussion and resolution.

• Preliminary meetings with the CUPE executive were encouraging as it appeared that the parties were in agreement about the effect and application of the decision.

• On Tuesday, February 21, 1995 [sic], Liz Carlisle took the position that the implementation of the decision required that the CUPE 1734 grid be compressed to be the same as the CUPE 1196 grid. This is a completely new position that was never raised during the two-year process with the Pay Equity Commission.

• CUPE 1734 employees reach the maximum of their grid in four years [sic]. CUPE 1196 employees reach the maximum of their grid in 12 months.

• The original pay equity plan which was signed with CUPE 1734 in 1989 included the difference in grid length. This issue was not raised then either.

• The potential cost of this demand is estimated at $250,000.00 annually and $1,000,000.00 retroactively to 1991.

• Liz Carlisle has written to staff that they will seek to appeal this issue to the Pay Equity Commission.

• The Board must decide whether to agree with the position put forward by CUPE 1734 or not.

15The School Board’s resolution coming out of the February 23, 1995 meeting was as follows:

That staff inform the President of CUPE 1734 that if the decision of the Pay Equity Tribunal is not in keeping with preliminary discussions with the CUPE 1734 Union, the Board will proceed to take this matter to Judicial Review.

16On March 6, 1995, Ms. Nemni wrote to Ms. Carlisle, and repeated her assertion that the issue of the four-step grid had not previously been raised by Local 1734 when the pay equity plan was originally negotiated and implemented, nor before the Review Officer or Tribunal. She also advised Ms. Carlisle of the Board’s resolution with respect to this matter:

For CUPE to put forward the issue of the grids at this stage of the process is inappropriate. At the February 23, 1995 Board meeting the Board was informed of CUPE’s position regarding the grids. The Board reviewed the decision of the Tribunal and the review officer’s order and disagreed with CUPE’s interpretation of them. It decided that if the parties could not resolve this issue of interpretation that the decision of the Tribunal should be reviewed in its entirety.

It is my sincere desire that we resolve this problem without further litigation. Liz, I urge you to not pursue this issue in this manner. As Maria told you on February 27, 1995, we will not be implementing the pay adjustments until we are in agreement of the application of the Tribunal’s decision. This has been communicated to the employees.

17On March 8, 1995, Ms. Carlisle responded to Ms. Nemni’s letter:

Further to our Special Union Management Meeting of February 14, 1995 and your letter of March 6, 1995, please be advised that the union agrees to the implementation forthwith of the award of the Pay Equity Hearings Tribunal in the manner proposed in your memo of February 22, 1995.

However, our agreement to this schedule of implementation is without prejudice to our position that pay equity must also be achieved and maintained for the job class of Head Secretary – Elementary, and without prejudice to our position that we are entitled to seek full retroactivity in the event that a higher paid male comparator is found to be appropriate for that job class.

18Ms. Carlisle and Ms. Nemni exchanged some further correspondence respecting the outstanding issue with respect to the Head Secretary – Elementary position, but ultimately the following communication was issued by Ms. Nemni to the Local 1734 members:

After much discussion with the CUPE 1734 executive with respect to the Pay Equity Order, we have agreed that the Order will be implemented according to our original understanding as indicated in the Board’s memo of February 22, 1995.

The issue that relates to the Head Secretary – Elementary will be discussed separately with your CUPE executive.

The Pay Equity Order will be implemented in the following manner:

1. On the June 15, 1995 pay, all rates will be adjusted and the retroactive payment to January 1, 1995 will be paid as part of this pay.

2. On the September 21, 1995 pay, all remaining retroactive payments owing will be paid.

19The matter of the grids was not raised again by Local 1734 with the School Board until more than 5 years later. By that time Ms. Nemni was not in the School Board’s employ.

20Ms. Carlisle retired from the School Board in 2004. She held the office of Local 1734 President until later in 1995, and then again for a period of time in the early 2000s.

21Nemni testified that she understood from her exchange of communication with Carlisle in the spring of 1995 that in return for the immediate implementation of the Tribunal decision without waiting for the outcome of judicial review proceedings, Local 1734 had abandoned its position with respect to the wage grids, but had specifically reserved its right to pursue the Head Secretary issue separately.

22Carlisle, on the other hand, testified that Local 1734 had only agreed not to pursue the wage grid issue in 1995, and had not abandoned it forever. In response to some rather leading questions from Local 1734 counsel, Carlisle ultimately suggested in her re-examination that she came round to the view that the implementation of the Tribunal decision did not require the collapse of the wage grids, and that is why she ceased insisting on it. Carlisle was not able to say why, in those circumstances, Local 1734 had not specifically reserved the right to deal with the issue separately, as had occurred with respect to the Head Secretary position, nor why it was not raised with the School Board over the next several years. While her recollection on the point was admittedly uncertain, Carlisle testified that she thought she had raised the wage grid issue within Local 1734 subsequent to the events of the spring of 1995.

23Anne Didier was in 2001 a CUPE Job Evaluation Representative. She had been contacted the previous year by the Local 1734 executive and their National Representative respecting some concerns about the pay equity plan. She was not specifically consulted about the grid issue, but in her review of the Local 1734 pay equity plan, she formed the view that the different grid structures as between Locals 1734 and 1196 contravened the Act, specifically the requirement in section 7(1) that pay equity be established and maintained. She was influenced in this view by the decision in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Université Laval, 2000 CanLII 3 (QC T.D.P.), which is addressed later in this decision. By letter dated February 15, 2001, Ms. Didier wrote to the School Board’s Coordinator, Compensation, as follows:

During the course of reviewing issues relating to Job Evaluation, it has come to the Union’s attention that the pay structure in place violates the Pay Equity Act, and is not in keeping with, specifically, Subsection 7(1) of the Act. (You will note that is the subsection which was previously violated also.)

The pay structure, as it exists for CUPE Local 1196, allows classifications in Local 1196 to move through a three (3)-step grid advancing semi-annually. The pay structure, as it exists for Local 1734, allows classifications in Local 1734 to move through a four (4)-step grid advancing annually….

24By the time Ms. Didier wrote the above letter, Ms. Nemni was no longer with the Board, and Liz Carlisle was not the President of Local 1734. The Superintendent of School Services in 2001 was Diane Finlay. She replied to Ms. Didier’s letter on March 26, 2001. In that response, she referenced the fact that the current grid system had been in place since pay equity was first negotiated in 1989. Apparently unaware of the discussions between the School Board and Local 1734 in late winter 1995 respecting the implementation of the Tribunal’s decision, Ms. Finlay asserted that “…it has never even been remotely suggested that a difference in the grid structures as between Local 1734 and Local 1196 is in contravention of the Pay Equity Act or otherwise inappropriate. That issue was raised for the first time in your letter of February 15, 2001”.

25Ms. Didier responded by letter dated April 5, 2001, and acknowledged (erroneously) that the issue relating to the grid had not been raised previously with the Board, and proposed seeking clarification from the Pay Equity Commission with respect to the issue.

26It appears that nothing further happened with respect to the grid issue until the parties had completed their review and amendment of the Local 1734 pay equity plan, which was posted on April 22, 2002. By letter dated January 7, 2003, Ms. Didier wrote to Jaimini Randev, now Superintendent of Employee Services, enclosing the previous correspondence with Ms. Finlay. From this correspondence it also appears that Ms. Carlisle was not the Local 1734 President at this time. By letter dated March 3, 2003, Mr. Randev endorsed Ms. Finlay’s earlier response to the issue, but indicated the School Board would be willing to discuss the issue of grid steps in the next round of negotiations. Ms. Didier was of the opinion that the matter should not be addressed through collective bargaining and Local 1734’s application to the Pay Equity Commission followed in 2003. On February 19, 2007, the Review Officer issued her Notice of Decision, declining to order the School Board to adjust the Local 1734 wage grid by compressing the number of steps and the time taken to reach the maximum job rate to match the Local 1196 wage grid.

Parties’ Positions

27Local 1734’s position on the two issues identified at the outset can be briefly stated. First, Local 1734 submits that the evidence does not demonstrate that it agreed in 1995 to abandon the wage grid issue. Alternatively, even if what occurred could be construed as an agreement, no estoppel can arise in respect of it, because statutory rights cannot be estopped and because the School Board’s relinquishing the opportunity to judicially review a Tribunal decision in these circumstances does not amount to detrimental reliance. Moving on from the estoppel issue, Local 1734 takes the position that the Act requires the Local 1734 grid be collapsed or compressed to match the Local 1196 grid. Local 1734 takes the position that the Tribunal’s decision in Lakeridge was wrongly decided. Alternatively, Local 1734 says that if the Act does not require the compression of the Local 1734 wage grid, then the Human Rights Code does, and it has primacy over the Act and the Tribunal has an obligation to apply it. Local 1734 submits that the Lakeridge decision failed to properly consider whether the differential wage grids for Locals 1734 and 1196 contravened the Code.

28The School Board submits that Local 1734 clearly agreed in 1995 to forego the grid issue, and notes that anything other than an agreement to abandon it forever would have been worth nothing to the School Board because so long as it remained a potential issue the School Board faced the prospect of continuing liability should Local 1734’s position be accepted or found to have merit. The School Board relies on court decisions recognizing that persons may compromise or settle their rights arising under statute, and that distinguish between statutory provisions themselves, which may not be estopped, and contractual rights arising within a statutory framework, in which the doctrine of equitable estoppel may be applied. In the event its estoppel argument is unsuccessful, the School Board submits that Lakeridge was correctly decided and should be followed here, both insofar as it interprets the Act, and addresses and rejects the argument that consideration of the Code dictates a different result. In particular, the School Board asserts that the Code does not provide a means by which a party before a tribunal may attack the enabling statute of that tribunal on the basis of under-inclusiveness, which is essentially what Local 1734 is doing.

29At my invitation, both parties also made submissions with respect to whether the Act could be considered a special program within the meaning of section 14(1) of the Code, and if so, what the impact of that characterization would be. Local 1734 submitted that special programs are not insulated from review on the grounds that they perpetuate discrimination. The School Board did not disagree with that proposition, but noted that such claim must be made by someone within the group intended to benefit from the special program, and the claim must be based on an assertion that s/he was discriminated against vis-à-vis other intended beneficiaries on the basis of a ground prohibited under the Code. The School Board submitted that the second element is absent in the circumstances of this case.

30The parties filed extensive authorities, all of which I have reviewed in full, although I have not felt it necessary to address each one of them in this decision. The authorities filed are the following: Glengarry Memorial Hospital v Ontario Nurses’ Association, [1992] O.P.E.D. No. 16 (aff’d sub nom Glengarry Memorial Hospital v Ontario (Pay Equity Hearings Tribunal) (1995), 1995 CanLII 1488 (ON CA), 124 D.L.R. (4th) 82 (Ont. C.A.)); Bucyrus Blades of Canada Ltd. v. McKinley (2005), 2005 CanLII 1491 (ON SCDC), 250 D.L.R. (4th) 316 (Ont. Div. Ct.); Better Beef Ltd. v MacLean (2006), 2006 CanLII 17930 (ON SCDC), 80 O.R. (3d) 689 (Div. Ct.); Jacobs Catalytic Industrial Services Limited, [2007] OLRB Rep. November/December 1043 (aff’d sub nom IBEW Local 353 v. Ontario (Labour Relations Board) (Div. Ct. – January 27, 2009), (unreported)); Lakeridge Health Corporation, 2010 CanLII 46187 (ON P.E.H.T.); Malkowski v Ontario (Human Rights Commission), 2006 CanLII 43415 (ON SCDC), [2006] O.J. No. 5140 (Div. Ct.); Cooper v Ontario (Attorney General), [2009] O.J. No. 3589 (Div. Ct.); Ontario Nurses Association v Haldimand-Norfolk (Regional Municipality), [1989] O.P.E.D. No. 3; Ontario Human Rights Commission v Ontario (1994), 1994 CanLII 1590 (ON CA), 19 O.R. (3d) 387 (C.A.) (“the Roberts decision”); Blainey v Ontario Hockey Assn. (1987), 1987 CanLII 8494 (ON HRT), 9 C.H.R.R. D/4549 (Ont. Bd. Inq.); Ferrel v Ontario (Attorney General) (1988), 1998 CanLII 6274 (ON CA), 42 O.R. (3d) 97 (C.A.); CN v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114; Nishimura v Ontario (Human Rights Commission) (1989), 1989 CanLII 4317 (ON HCJ), 70 O.R. (2d) 347 (Div. Ct.); Re Haldimand Norfolk (1990), 1 P.E.R. 188 (Ont. Div. Ct.); Wentworth County Board of Education (1990), 1 P.E.R. 132; Lady Dunn General Hospital (1991), 2 P.E.R. 168; Canadian Union of Public Employees (CUPE) v Gloucester (City), [1991] O.P.E.D. No. 142; Haldimand-Norfolk (No.6) (1991), 2 P.E.R. 105; Glengarry Memorial Hospital (1991), 2 P.E.R. 153; Ontario Northland Transportation Commission v Transportation Communications International Union, Lodge 1463, [1992] O.P.E.D. No. 35 (aff’d sub nom Ontario Northland Transportation Commission v Ontario (Pay Equity Hearings Tribunal), [1993] O.J. No. 1482 (Div. Ct.)); Welland County General Hospital v Service Employees International Union, Local 204, [1994] O.P.E.D. No. 36; British Columbia (Public Service Employee Relations Commission) v B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3; Québec (Comm. Des droits de la personne et des droits de la jeunesse c Université Laval (2000), 2000 CanLII 3 (QC TDP), 38 C.H.R.R. D/301 (Trib. Que.) (quashed as to remedy sub nom Université Laval c Commission des droits de la personne et des droits de la jeunesse, [2005] J.Q. no. 257 (Cour d’appel du Québec)); Stevenson Memorial Hospital v Ontario Public Service Employees Union, Local 360, [2000] O.P.E.D. No. 1;Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; Ontario Secondary School Teachers’ Federation v Brant Haldimand-Norfolk Catholic District School Board, [2009] O.P.E.D. No. 27 (aff’d [2011] O.J. No. 1399 (Div. Ct.)); Hamilton-Wentworth District School Board (2009), Can LII 60545 (ON P.E.H.T.); Brant Haldimand-Norfolk Catholic District School Board (13 April 2006) (P.E.H.T.); R v Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Caressant Care Nursing Home of Canada Limited v Ontario (Pay Equity Hearings Tribunal), 2005 CanLII 13791 (Ont. Div. Ct.); The Windsor Star, [2009] O.P.E.D. No. 4 (aff’d [2011] O.J. No. 2375 (Div. Ct.)); Ongwanada (2001-02), 12 PER 1; Addiction Services of Eastern Ontario v Canadian Union of Public Employees (CUPE) Local 1997-02, [2009] O.P.E.D. No. 21; Ontario (Director, Disability Support Program) v Tranchemontagne, 2010 ONCA 593, [2010] O.J. No. 3812; 1086891 Ontario Inc. v Barber, 2007 CanLII 18734 (ON S.C.D.C.); Re Algonquin College and Ontario Public Service Employees’ Union (1985), 1985 CanLII 5355 (ON LA), 19 L.A.C. (3d) 81 (aff’d April 16, 1987 (unreported) Ont. Div. Ct.); Brick and Allied Craft Union of Canada v Ontario Power Generation Inc., 2001 CanLII 6593 (ON L.R.B.); Campbell v Toronto District School Board, 2008 HRTO 62; Field v Workplace Safety and Insurance Board, 2010 HRTO 1028; Chan v Drake International, 2009 HRTO 1067; Trozzi v College of Nurses of Ontario, 2010 HRTO 1892; Pando v Colleges of Applied Arts and Technology Pension Plan, 2009 HRTO 59; Tapak v Windsor Police Services, 2010 HRTO 1383; Eagleson Co-Operative Homes Inc. v Théberge, 2006 CanLII 29987 (ON S.C.D.C.); Council of Canadians with Disabilities v VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Sigrist and Carson v London District Catholic School Board, 2010 HRTO 1062; Newfoundland (Treasury Board) v N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; Reid v Truro (Town), 2009 NSHRC 2; R v Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Ball v Ontario (Community and Social Services), 2010 HRTO 360; Service Employees International Union, Local 204 v Ontario (Attorney General) (1997), 1997 CanLII 12286 (ON CTGD), 35 O.R. (3d) 508 (Div. Ct.); Ontario Human Rights Commission, Human Rights at Work, (3d ed), Thomson Carswell; Québec (Commission des droits de la personne et des droits de la jeunesse) v Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665; Manitoba Council of Health Care Unions v Bethesda Hospital, [1992] M.J. No. 2 (Q.B.); St. Amand v Thames Valley District School Board, 2009 HRTO 1051

Analysis

(a) the Estoppel Issue

31I am going to deal briefly with the estoppel question first. In the circumstances of this case I do not need to decide the extent to which estoppel may lie in respect of the provisions of a public statute, or in respect of a contract made within a statutory framework. Even assuming the doctrine of equitable estoppel could operate to bar Local 1734 making any challenge under the Act to the propriety of the wage grids subsequent to 1995, it is my conclusion on the evidence that no estoppel arises in the circumstances of this case.

32The Tribunal dealt with an estoppel argument in Ongwanada. That decision sets out the elements of estoppel, which are not controversial. For an estoppel to lie, one contracting party must make an unequivocal representation to another that it will not rely on a particular contractual right it possesses, and the other party must act to its detriment in reliance on that representation. The evidence in this case does not support a finding that Local 1734 made an unequivocal representation that the wage grids would never be challenged under the Act, nor that the School Board had such understanding at the time. Further, the evidence does not support a finding that the School Board acted to its detriment on the basis of the representation that was made.

33Both Nemni and Carlisle were testifying in 2010 about events that had occurred 15 years earlier. Further, at the time of their testimony, each had been gone from the School Board for a considerable period of time. I have no doubt that both testified to the best of their abilities, but in the circumstances the best evidence of the content of their 1995 discussions about the implementation of the Tribunal decision is found in their written communications.

34There is no doubt whatsoever that Local 1734 raised but ultimately did not pursue the wage grid issue in 1995. The communications between the parties at that time are ambiguous in my view with respect to their mutual understanding about what not pursuing the issue in 1995 might mean for Local 1734’s ability to pursue it in the future. On the one hand, Local 1734 did not specifically reserve the right to challenge the wage grids, as it did with the Head Secretary issue. On the other hand, it did not make any explicit statement that it would never raise the issue in the future. Furthermore, the School Board had simply taken the position that Local 1734 could not challenge the wage grid issue in the context of the implementation of the Tribunal award because it had not ever had the matter investigated by a Review Officer nor had it been dealt with by the Tribunal. (By contrast, there was an active complaint proceeding underway involving the Pay Equity Office in the issue about the Head Secretary position.) In her communications to Local 1734 respecting the wage grid issue in the spring of 1995, Ms. Nemni clearly stated to Ms. Carlisle her view that implementation of the Tribunal decision did not require alteration of the grid. Her final statement to Carlisle was, “I urge you not to raise this issue in this manner”. That statement is not consistent with an understanding that the issue, if dropped at this point, could never be pursued, but appears simply to acknowledge what had been the School Board’s point all along – that the implementation of the Tribunal decision did not entail any alteration of the structure of the wage grid.

35Having regard to the considerations outlined in the preceding paragraph, I am not able to conclude that Local 1734 ever represented to the School Board that it was dropping the issue of the wage grid forever. Rather, it simply decided not to pursue the issue in the context of what was required to implement the Tribunal’s decision.

36Even if it were possible to construe the communications between the parties as supporting a finding that Local 1734 clearly represented it would never pursue the wage grid issue, I still do not think Local 1734 would be estopped because of this representation from pursuing the issue at a later point because I fail to see what the School Board did to its detriment in relying on that statement. We know from the record that the School Board had already decided that it would implement the Tribunal’s decision and not seek to judicially review it. That is what it ended up doing once the discussions with Local 1734 concluded. The School Board was therefore no better or worse off than it would have been if Local 1734 had not mentioned the wage grid at all.

(b) the Act

37Turning now to the question of whether the Act requires the compression of the Local 1734 grid for the female job classes compared to Local 1196 male job classes, I am not persuaded that the unanimous decision of the panel (over which I presided) in Lakeridge was wrong.

38I do not disagree with the principles of interpretation advanced by Local 1734. I agree that the Act must be given a large and liberal interpretation to achieve its objects. I agree further with all the statements made over the years in the case law emphasizing that the Act combines elements of employment, labour and anti-discrimination law.

39Counsel for Local 1734 relies on section 7(1) as the cornerstone of the Tribunal’s jurisdiction in ensuring that the purpose of the Act (set out in section 4) is realized. These sections are reproduced below:

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

(2) 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.

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

40Counsel for Local 1734 also referred to a great number of previous Tribunal decisions. I am paraphrasing her argument at this point in saying that she noted their bold and expansive approach to certain issues, in order, as they said, to give effect to the purposes of the Act. Particular attention was paid to the Tribunal’s approach to determining the identity of the employer of a group of employees under the Act. Specific reference was made to the decision in Haldimand-Norfolk (No.3), where, in the absence of a definition of “employer” in the Act, the Tribunal found that an entity other than the one that signed the collective agreement with a bargaining agent was the employer of the individuals in the bargaining unit. The overall approach in that decision was followed in a number of other cases as well, although at least two of them questioned certain aspects of the tests articulated for identifying the employer. See Middlesex and London (1990) 1 P.E.R. 89 and Barrie (City) CUPE Local 2389, [1991] O.P.E.D. No. 41. Making reference to a number of provisions of the Act in support of its approach, the majority in Barrie offered its view that the employer for pay equity purposes would rarely be found to be someone other than the collective agreement employer.

41The corollary to Local 1734’s view of the “employer” jurisprudence, or indeed other earlier Tribunal case law, which Local 1734 says illustrated a broad purposive approach to the Act, is its view of Lakeridge, which was described in argument as narrow and technical. It was also submitted that the Lakeridge decision placed too much emphasis on section 6(1) of the Act, when it should have focused on section 7(1) of the Act.

42To the extent that an issue arises under the Act as to the identity of the employer of a group of employees, the Tribunal has the jurisdiction to resolve that question. In the absence of a statutory definition to apply, it has considerable scope to develop its own tests for determining the issue. That is what the “employer” cases demonstrate. Even within that context, however, the tests must be developed having regard to the purpose and to the language of the Act. The situation before me is not analogous to the “employer” cases, where the Act’s silence provided the Tribunal with significant scope to develop the definition or test it thought appropriate to “redress systemic gender discrimination in compensation”. The Act was silent on the definition of “employer” but it is not silent with respect to the issue before me, which relates exclusively to what the Act requires where systemic discrimination has been shown to exist (i.e. where female job classes are not paid commensurate with their value). There are many provisions in the Act that specifically address how that discrimination is to be redressed: the minimum amount that must be dedicated annually to adjustments; to whom adjustments are made; when they are made; how they are distributed among the female job classes entitled to adjustments; and how they are distributed within the female job class entitled to adjustments. Furthermore, the approach or interpretation of an issue on which the Act contains no express language (such as employer) does not occur in a vacuum and must take account of the totality of the Act’s provisions. The difficulty I have with concluding that section 7(1) dictates that Local 1734’s position must prevail is that it implies that section 7(1) overrides other specific language in the Act.

43I have no difficulty agreeing with Local 1734 that the language of section 7(1) is broad enough, if it were the only statutory guidance I had, to compel the result Local 1734 seeks. But section 7(1) does not stand alone. This was the point emphasized in Lakeridge, and I return to it below. For now, it is sufficient to note that section 7(1)’s inclusion as part of a comprehensive statutory scheme distinguishes it from the similarly broad language at issue in other cases relied on by Local 1734.

44Nishimura was a complaint under the Ontario Human Rights Code about the fact that internal and external sales representatives for the Toronto Star were paid differently and there was a clear gender divide in the two groups of workers with the female group being paid less. The question addressed by the Divisional Court was whether the Human Rights Commission had jurisdiction to address the complaint. The Court held that section 5(1) of the Code, providing that “every person has a right to equal treatment with respect to employment without discrimination because of …sex”, was broad enough to confer on the Commission the jurisdiction to entertain a complaint about a failure to pay “equal pay for work of equal value” to a group of female employees of the Toronto Star. No decision was issued on the merits of whether a Code violation had been established.

45Action Travail des Femmes also dealt with a jurisdictional question: the jurisdiction of the Federal Human Rights Tribunal, after having found that women were systemically discriminated against in respect of employment by CN, to order CN to implement a particular hiring/recruiting program with numerical targets for female employment under the guise of exercising remedial jurisdiction to “prevent the same or a similar practice occurring in the future”. The Federal Tribunal’s remedial jurisdiction was held to be broad enough to encompass the making of such an order. By contrast, the provisions of the Act constrain what adjustments may be required. As one example – no more than 1% of an employer’s annual payroll for the preceding year need be dedicated to pay equity adjustments in the current year.

46The Laval case involved a complaint arising out of facts similar to this one. A bargaining unit of predominantly female workers was found to perform work of equal or comparable value to a bargaining unit of predominantly male workers. The first bargaining unit was paid in accordance with a multi-step wage grid; the second had a single wage rate. This situation was challenged under, and found to violate, section 19 of the Quebec Charter of Rights and Freedoms, which provided that “every employer must, without discrimination, grant equal salary or wages to the members of his personnel who perform equivalent work at the same place”. The Charter did not dictate how a violation of this section must be remedied. The University was ordered to pay a single rate to the female bargaining unit, and this aspect of the order was quashed, as it was noted that either pay scale, so long as it was applied to both bargaining units was appropriate, and it should have been left to the parties to negotiate what that pay scale should be.

47To the extent the above cases are relied on as providing me with guidance on how the interpretation of section 7(1) should be approached, therefore, I do not find them particularly helpful because they deal with statutory provisions conferring on a tribunal the jurisdiction to determine if gender discrimination in pay exists, and leaving completely to the tribunal’s discretion the question of how that should be redressed. That is not the context in which section 7(1) is found. Section 7(1) is part of an entire statutory mechanism aimed at enabling workplace parties to identify systemic gender discrimination in compensation, and telling them what to do to redress it. All of the Act’s provisions must be considered and read harmoniously, if possible.

48That is what the reasons in Lakeridge attempted to do and I am not persuaded that that decision was wrongly decided. The analysis of the Act is set out in Lakeridge at paragraphs 22 to 30 inclusive:

22. The purpose of the Act is to redress gender discrimination in compensation. Gender discrimination in compensation is identified by comparing the value of work performed by male and female job classes. Where work performed by male and female job classes is of equal or comparable value (that is where a job-to-job comparison is possible), and the male job class receives greater compensation, an adjustment may be required. There are circumstances in the Act, however, where no adjustment is required and/or where discrepancies in compensation between comparably-valued male and female job classes are not only permissible but contemplated. If we are concerned with a female job class in bargaining unit A, those circumstances will include the following:

• where there is a comparably-valued male job class in bargaining unit B and a comparably-valued male job class in bargaining unit A that is paid less. Then the female job class compensation is adjusted with reference to the latter’s job rate; or,

• where there are two (or more) comparably-valued male job classes that are available to be a comparator (i.e. in the same bargaining unit) but paid different rates. Then the female job class compensation is adjusted with reference to the job rate of the lower (or lowest) paid of the male job classes; or,

• where one of the exceptions enumerated in section 8 of the Act applies.

23. CUPE suggested repeatedly that the average person on the street would think it unfair that incumbents of equally-valued male and female job classes with similar lengths of service might be paid a different rate of compensation. That may be so, but it is not a situation uncontemplated in the Act, so we do not think that principle can dictate the answer to the issue before us.

24. As noted above, the confronting issue in this case arises at the point that the parties must consider what pay equity adjustments are required for the pairs of comparably-valued male and female job classes that they have identified. The goal of the Act is “to establish …compensation practices that provide for pay equity”. The Act defines when pay equity is “achieved”. The definition for both job-to-job comparisons and comparisons based on PV are similar in that they make explicit reference to “job rate” which is the highest rate of compensation available to a job class. These are the sections that speak to when pay equity is achieved:

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

6(1) For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison 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.

(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.

(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 hob 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.

21.3(1) Pay equity is achieved for a female job class under the proportional value method of comparison,

(a) when the class is compared with a representative male job class or representative group of male job classes in accordance with this section; and

(b) when the job rate for the class bears the same relationship to the value of the work performed in the class as the job rate for the male job class bears to the value of the work performed in that class or as the job rates for the male job classes bear to the value of the work performed in those classes, as the case may be.

25. The common meaning of the terms “achieve” and “achievement” suggest the end of a process and the attainment of a goal. These are the definitions found in The Concise Oxford Dictionary (7th ed. – 1982):

Achieve: 1. accomplish, carry out; acquire; reach (success, glory, one’s objective); 2. attain desired level of performance. …

Achievement: completion, accomplishment; thing accomplished.

26. This sense that “achieved” refers to a goal attained is reinforced when we look at what section 13 of the Act requires in terms of pay equity adjustments. Section 13(2) which describes the contents of plans says that with respect to all female job classes for which pay equity does not exist, they must “describe how the compensation in those job classes will be adjusted to achieve pay equity”. Section 13(3) creates a priority among female job classes for the payment of pay equity adjustments. Section 13(4) deals with minimum adjustments required. Section 13(5) deals with the timing of adjustments. All these subsections contemplate that the implementation of pay equity is complete when “the amount required to achieve pay equity has been paid”. Here is the actual language of these sections:

(2) If both female job classes and male job classes exist in an establishment, every pay equity plan for the establishment,

(d) shall, with respect to all female job classes for which pay equity does not exist according to the comparisons under section 12, describe how the compensation in those job classes will be adjusted to achieve pay equity; and

(3) A pay equity plan shall provide that the female job class or classes that have, at any time during the implementation of the plan, the lowest job rate shall receive increases in rates of compensation under the plan that are greater than the increases under the plan for other female job classes until such time as the job rate for the female job class or classes receiving the greater increases is equal to the lesser of,

(a) the job rate required to achieve pay equity; and

(b) the job rate of the female job class or classes entitled to receive an adjustment under the plan with the next lowest job rate.

(4) The first adjustments in compensation under a pay equity plan are payable as of the date provided for in clause (2) (e) and shall be such that the combined compensation payable under all pay equity plans of the employer during the twelve-month period following the first adjustments shall be increased by an amount that is not less than the lesser of,

(a) 1 per cent of the employer’s payroll during the twelve-month period preceding the first adjustments; and

(b) the amount required to achieve pay equity.

(5) Adjustments shall be made in compensation under a pay equity plan on each anniversary of the first adjustments in compensation under the plan and shall be such that during the twelve-month period following each anniversary the combined compensation payable under all pay equity plans of the employer shall be increased by an amount that is not less than the lesser of,

(a) 1 per cent of the employer’s payroll during the twelve-month period preceding the anniversary; and

(b) the amount required to achieve pay equity

27. The Act consistently refers to the achievement of pay equity in terms of the adjustment of job rates despite the fact that it also contains both explicit and implicit acknowledgment that job classes may have more than one rate of compensation attached to them. There is explicit acknowledgment of this fact in the definition of what positions may comprise a “job class”: those with the same “compensation schedule, salary grade or range of salary rates”. The use of the adjustment of “job rates” as the measure for when pay equity is achieved must be considered a deliberate choice. Clearly the Act might have provided that pay equity is achieved when the “compensation schedule, salary grade or range of salary rates” for the male and female job classes are equalized.

28. The only section of the Act that addresses itself to what adjustments must be paid to people in positions encompassed by a job class but compensated at a rate below the “job rate” is section 9(3). This section provides as follows:

9(3) Where, to achieve pay equity, it is necessary to increase the rate of compensation for a job class, all positions in the job class shall receive the same adjustment in dollar terms.

29. There is a live debate about what constitutes a “position” for the purposes of section 9(3), but we do not need to address that for the purposes of this decision. What we do know is that all positions in the same job class must, as a prerequisite to being in that job class, have the same “compensation schedule, salary grade or range of salary rates”. If that is so, then accepting CUPE’s argument that section 7(1) of the Act requires the equalization of the grids in terms of rate of progression and compensation paid at each level, would lead to a situation where section 9(3) of the Act is rendered at best redundant, and at worst in conflict with section 7(1). A conflict between the two subsections would occur wherever steps on a male grid were not separated by equal dollar amounts. We prefer an interpretation of the Act as a whole that does not render sections of it redundant or create a conflict. In our view, section 9(3) only makes sense in a scheme where its absence would mean the only statutorily-mandated pay equity adjustment would be to the “job rate”, such that positions in the female job class that were paid below the job rate would not benefit from the “achievement” of pay equity.

30. Our view therefore is that, having regard to all of the provisions of the Act, we cannot conclude that section 7(1) or any other provision of the Act mandates the result urged by CUPE in this case. We also agree with counsel for Lakeridge that finding otherwise could lead to some practical difficulties and consequences that are inconsistent with what the Tribunal has noted about the relationship between the Act and collective bargaining. Collective agreements typically set out a wage schedule. It might consist of a single rate or a grid, or perhaps a combination of the two. Pay equity adjustments for female job classes must be incorporated into and prevail over the collective agreement. Where male comparators are found outside the bargaining unit to which the plan relates, requiring a mapping to the “range of salary rates” for that male job class could be quite disruptive of the compensation schedule the negotiating parties agreed to. This is inconsistent with those provisions of the Act (the requirement for separate plans for example and the primacy of locating comparators within the same bargaining unit) that respect the role of collective bargaining, including the parties’ agreements about how to distribute wage dollars and other benefits.

49Local 1734 submitted that too much emphasis was placed in Lakeridge on section 6 of the Act, and counsel referred to the Court of Appeal decision in Glengarry in support of the proposition that section 6(1) is not “jurisdiction limiting”. The case before the Tribunal in Glengarry involved the situation where a female job class was determined under a pay equity plan to be entitled to a compensation adjustment based on the job rate of its male comparator. A collective agreement increase that became effective for the female job class before the pay equity adjustment had been made boosted the job rate beyond that of the male comparator. The employer did not want to apply both the pay equity adjustment and the whole of the collectively bargained adjustment to the female job class, but the Tribunal directed that it do so, relying on its reading of the whole of section 13 of the Act.

50Before the reviewing courts, the employer’s argument in Glengarry was that the Tribunal had no jurisdiction to make the direction it did because it exceeded what was required to achieve pay equity. It was in that context that the Court stated that section 6(1) was not jurisdiction-limiting. I have no quarrel with that statement, which is in any event consistent with the actual language (“at least equal”) of section 6, but I do not see its pertinence to Lakeridge. I do not interpret the Court of Appeal as saying that there are no jurisdictional limits to what the Tribunal may do when confronted with equally-valued male and female job classes or incumbents of those job classes who are not paid equally. The Court of Appeal did not comment on section 7(1) and its decision does not stand for the proposition that the section confers some kind of plenary or over-arching jurisdiction on the Tribunal.

51While the Tribunal’s decision in Gloucester does suggest that section 7(1) confers a kind of over-arching jurisdiction, that aspect of the decision was obiter, and the jurisprudence since Gloucester has cast doubt on the result in that case. Gloucester involved comparably valued male and female job classes within the same bargaining unit and subject to the same multi-step pay grid. The dollar value difference in the job rate between comparably-valued male and female job classes, if applied to all the steps of the grid for the female job classes (which CUPE asserted section 9(3) of the Act required) would result in those below the job rate in the female job class making more at each step of the grid than their counterparts at the same step in the male job class. The Tribunal determined that 9(3) did not apply to steps in a grid, and therefore rejected CUPE’s position. The Tribunal also added, however, that its conclusion did not mean steps below the job rate did not need to be adjusted because section 7(1) would require that to occur. The result in the particular case was that the female job class and male job class grid continued to match. Brant Haldimand-Norfolk Catholic District School Board disagreed with the Gloucester analysis of section 9(3), and held that the section required that the same pay equity dollar adjustment be made to the entire complement (both incumbents and vacancies) of the previously under-valued female job class. That decision has been upheld on judicial review. What Local 1734 here suggests that section 7(1) of the Act requires is inconsistent with what section 9(3) requires (on the Brant Haldimand-Norfolk District School Board analysis), and what the School Board here did in 1989.

52Local 1734 also referred to the Tribunal’s decision in Hamilton-Wentworth District School Board v Ontario Secondary School Teachers. Federation, [2009] O.P.E.D. No. 36 in support of its argument that the wage grid for female Local 1734 job classes must be compressed to mirror that of their equally-valued Local 1196 male comparators. The Hamilton-Wentworth decision did not deal with a wage grid issue. The parties in that case could not agree on how to account for vacation entitlement in calculating the hourly rate of a particular job class. Each party presented the Tribunal with its preferred formula for making that calculation and asked the Tribunal to choose between them. The Tribunal did not agree that either formula was appropriate, and remitted the matter to the parties to determine, but in doing so made a number of general comments about the operation of the Act, without specifically referring to any sections. Among those general comments was the following:

The current collective agreement between the School Board and Local 1196 stipulates a wage grid comprised of three steps for each classification. Employees reach the maximum wage rate attaching to their classification in one year. The structure of this wage grid has been in place for many years and preceded the enactment of the Act.

In the context in which the above comments were made, and in the absence of any comprehensive analysis of the specific provisions of the Act, I am not persuaded that they compel the result urged by Local 1734 in this case.

(c) The Code

53The applicant union in Lakeridge made brief submissions about the impact of the Code on both the Tribunal’s interpretation of the Act, and about the independent obligation of the Tribunal to apply the Code. The decision dealt with the argument summarily:

31. While CUPE made brief reference to the Human Rights Code and the Canadian Charter of Rights and Freedoms in argument, we do not think consideration of this legislation assists us in this case. We do not disagree with the proposition that there are human rights aspects to the Act, and that its interpretation should be informed by human rights and equality principles. The fact remains, however, that in this province the Act provides a comprehensive scheme for the redressing of systemic gender discrimination in compensation. Our interpretation of the Act is that it does not compel the result CUPE has urged. If the Act does not require that all discrepancies between the compensation received by members of female job classes and members of comparably-valued male job classes be redressed, predicating that result on a consideration of what the Code or Charter might dictate in the absence of a comprehensive statutory scheme amounts to assuming an inappropriate legislative role.

54There is no doubt since the Tranchemontagne decision that the Tribunal has the jurisdiction and the obligation to apply the Code. It is also beyond dispute that the Act does not contain any specific provision that renders the Code inapplicable with the consequence that section 47(2) of the Code makes it paramount over the Act:

47. (2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

55Incumbents of female 1734 job classes with less than three years service are paid less than incumbents of comparably-valued male 1196 job classes with the same length of service. Local 1734 submits that this situation contravenes section 5(1) of the Code:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

56The Act, like the Code, is anti-discrimination legislation, but it operates only in one specific social area – employment. Its purpose is stated explicitly in both its preamble, and in section 4(1):

Whereas it is desirable that affirmative action be taken to redress gender discrimination in the compensation of employees employed in female job classes in Ontario;

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

57The Act provides a complete scheme for ascertaining the presence of gender discrimination in employment compensation, and directing how compensation must be adjusted in the establishments where such discrimination exists. The Act’s mechanisms are not merely engaged when a complaint is made (as occurs with the Code), but rather it requires an employer to be pro-active and to take “affirmative action”. The circumstances of this case do not reveal a contravention of the Act, and there has been no challenge made by Local 1734 under section 15 of the Canadian Charter of Rights and Freedoms to the constitutional validity of any of its provisions.

58The Act is a measure designed to address pro-actively one specific aspect (rates of compensation) of what is encompassed by the Code’s guarantee of freedom from discrimination in employment on the basis of sex. It is an embodiment or manifestation of that guarantee. It is counter-intuitive to conceive of an employer who complies with its requirements as being in contravention of section 5(1) of the Code. I find some support for this view in two decisions of the Human Rights Tribunal: St. Amand v Thames Valley District School Board where the Tribunal refused to deal with a claim of discrimination in employment arising out of the application of the Act in which it referred to the Act as providing a comprehensive system for dealing with pay equity complaints; and Sigrist v London District School Board, a complaint relating to the adequacy of the School Board’s response to children with special needs in which the Tribunal stated that the legislative scheme under the Education Act (including the possibility of complaint to and adjudication by the Special Education Tribunal) is an embodiment of the duty to accommodate under the Code.

59To the extent that results contemplated under the Act as lawful and in compliance with it can be challenged pursuant to the Code, that analysis ought to recognize that the Act is akin to a “special program” within the meaning of section 14(1) of the Code and apply the principles articulated in the case law dealing with special programs:

14.(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

60Special programs are not immunized from a complaint that they contravene the Code, but the jurisprudence suggests that who may make such complaint and what they may complain about is limited.

61Persons suffering from the disadvantage that a special program is designed to ameliorate may complain that its operation discriminates against them vis-à-vis other persons in the disadvantaged group based on a prohibited ground. So, for example, in the Roberts decision, an elderly gentleman named Roberts successfully complained (ultimately to the Court of Appeal) that a program designed to relieve some of the hardship associated with disabilities by funding the purchase of assistive devices, discriminated against him when it predicated the availability of funding for the device he required on the age of the recipient and did not fund him on that basis. Mr. Roberts had a disability and required an assistive device. The purchase of that assistive device was funded for persons having his disability, but only if they were younger than the specified threshold.

62The Act is designed to benefit employees in female job classes whose work has been under-valued. Viewed through the Roberts decision lens, it seems to me that Local 1734 can only establish that the Act contravenes the Code where it can demonstrate that the Act discriminates amongst employees in female job classes AND the basis of that discrimination is a prohibited ground under the Code. That simply does not exist here. The same provisions for how compensation must be adjusted apply in respect of all female job classes.

63Local 1734 does not challenge the School Board’s treatment of any members of the female job classes vis-à-vis other members of the female job classes. What it is really doing, is challenging the language of the Act itself, although without formally raising a constitutional question. I agree with counsel for the School Board that this situation is conceptually the same as that addressed in Malkowski v Ontario (Human Rights Commission), and that the Tribunal has no jurisdiction to amend the Act. Malkowski had severe hearing loss. The Building Code contained requirements for movie theatres to provide assisted hearing devices. The magnitude of Malkowski’s hearing loss was such that those devices were of no benefit to him. He would have benefited from a form of captioning, but it was not required by the Building Code, and he complained that that omission contravened the Code. The Divisional Court noted that the Code falls short of being a constitutional document enabling a Tribunal or Court to disallow legislation or require changes to it, and added: “to read the Code as the applicant asks is to grant to the Tribunal the power to amend legislation to bring it into conformity with the Code. I cannot find that power in this language” (at para. 38).

64For all of the above reasons, I find that the facts of this case do not make out a contravention of the Code.