Three Trilliums Community Place Inc. v. A Confidential Employee and Employees of the Employer not represented by a bargaining unit agent, 2011 CanLII 43021

Ontario Pay Equity Hearings Tribunal

3569-10-PE Three Trilliums Community Place Inc., Applicant v. A Confidential Employee and Employees of the Employer not represented by a bargaining unit agent, Responding Party.

BEFORE: Mary Anne McKellar, Vice-Chair, Paul LeMay and Pauline R. Seville, Members.

APPEARANCES: Allison Greene, Fran Boyce and Rosina Isabella appeared on behalf of the applicant; no one appeared on behalf of the responding party.

DECISION OF THE TRIBUNAL: July 15, 2011

Introduction

1. This is an application under the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”) which arises out of a Review Officer’s Order dated November 5, 2010 (“the 2010 Order”), directing the applicant (“Three Trilliums”) to pay $875,916.71 (plus interest) in pay equity adjustments in respect of arrears found owing under a pay equity plan that employed the proxy methodology of comparison.

2. Three Trilliums was declared to be a “seeking employer” under Part III.2 (Proxy Method of Comparison) of the Act on November 28, 2003 (“the 2003 Order”).

3. Three Trilliums seeks in this proceeding to have the “seeking employer” declaration in the 2003 Order rescinded, or, in the alternative, to have the Tribunal vary the amount of the arrears found to be outstanding pursuant to the 2010 Order.

4. We heard this matter on May 13, 2011. Three Trilliums was the only party in attendance at the hearing, although broad notice had been given to its current and former employees. One individual filed a response, but did not attend the hearing. It is not clear how the contents of his response pertain to the issues raised by Three Trilliums in its application, and for this reason, as well as the fact that he did not attend to advance his case, we give no further consideration to that response in this decision.

The Facts

5. We heard testimony from Fran Boyce, the Executive Director of Three Trilliums. Our findings of fact set out below are based on her testimony, and on the documentary evidence filed.

6. Ms. Boyce has 27 years of service with Three Trilliums, starting as a front-line worker in 1984, and becoming Executive Director in 2001. She is responsible for all of Three Trilliums day-to-day operations, including human resources, public relations, financial management and program and service management. Ms. Boyce reports to an eight-member Board of Directors comprised of professionals in the community and people who receive services from Three Trilliums.

7. Three Trilliums is a non-profit organization that provides physical support to 25 disabled adults residing in two multi-residential buildings and to 16 disabled adults on an outreach basis. All of its clients reside in Toronto.

8. Three Trilliums currently has 65 employees. Some work full-time, some part-time, and others are employed on a casual basis. There were approximately 85 employees in 2003. The majority of them are attendants, providing hands-on services to clients involving significant elements of personal care. These services are provided on a gender-specific basis, and the gender incumbency of the attendants as a whole reflects that.

9. Cerebral palsy, multiple sclerosis and spinal muscular atrophy are typical of underlying conditions that cause the Three Trilliums clients to be disabled. The disabilities are such that they experience difficulty in bathing/showering, housekeeping and preparing meals. These are the services provided by the Three Trilliums attendants. In the case of the residential clients, these services are available 24 hours per day on both an appointment and/or on call basis. For the outreach clients, the services are available by appointment only.

10. Three Trilliums supplies services to its clients under the auspices of the Long Term Care Act, and in accordance with the Long-Term Care Supportive Housing Policy of the Ministry of Health (“MOH”) for residential care. Persons eligible to receive services are those 16 years of age or older who have a physical disability and require personal support services and homemaking on a continuing basis. Persons receiving those services must be able to direct the provision of those services. Personal support services include: assistance with personal hygiene; assistance with activities of daily living; and transferring/positioning/turning. Homemaking services include: vacuuming; shopping; meal preparation; laundry; changing bed linens; light housekeeping; and banking. Outreach services are provided in accordance with the MOH Policy Guidelines and Operational Standards for Attendant Outreach Services, which specifies eligibility criteria. The eligibility criteria for Outreach Services are substantially the same as those for services provided in the supportive housing environment.

11. The clients who receive services from Three Trilliums are ultimately selected by Three Trilliums, but have applied for the services through an arms-length umbrella agency that deals with multiple service providers. In the case of applicants for supportive housing, Three Trilliums contacts the agency when it has a vacancy and is then provided with the names of various applicants. Three Trilliums screens them to ensure that they meet its eligibility criteria. Applications for outreach services are reviewed on a regular basis by a group of representatives of the various agencies that provide such services.

12. Three Trilliums does not employ any medical professionals and it does not provide any medical care to its clients, nor does it provide any medical supplies or diagnostic or laboratory services. Three Trilliums clients have their own relationships with health care practitioners, and they make their own travel arrangements (through WheelTrans, for example) when they need to attend medical appointments. A Three Trilliums staff member may accompany a client to such appointment where the client requires lifting assistance.

13. Clients who require ongoing medical services in their homes do so pursuant to the prescription of their individual medical practitioners, and the services are provided by the local Community Care Access Centre. The one quasi-medical service provided by Three Trilliums staff is assisting clients perform a routine self-catheterization. The Three Trilliums Reference Manual contains a specific policy pertaining to this matter, and it has been in place since 1991. Part of that policy reads:

Three Trilliums does not provide medical services to its clients. Three Trilliums’ staff, however, sometimes gets requests from clients to provide certain services, such as catheterization, which have a medical aspect. It is the intent of this policy to provide guidance to both clients and staff on such service requests.

Three Trilliums’ staff are authorized to provide services which meet the following standards:

1. the service is such that, if it were not for the client’s physical disability, the client would perform it for him/her self;

2. the service is such that it can be provided by attendant staff under the direction of the client without training beyond that normally provided by Three Trilliums; and

3. the service is of a routine nature and is required by the client because of a relatively stable physical condition.

14. Three Trilliums has portable mechanical lifts in each of the two residential facilities where it provides services. These were installed commencing in 1998 after several staff members sustained injuries performing manual lifts of clients. All of the residential units have tracking that enables the lifts to be used in each of them, although some clients have their own lift equipment. The purchase of the lifts and the tracking was funded by the MOH. In each of the two years in which special funding (i.e., funding outside of the regular budget) was provided for this purpose the amount provided was equivalent to less than 1% of Three Trilliums’ annual operating budget.

15. Prior to 1993 Three Trilliums was funded by the Ministry of Community and Social Services (“MCSS”). Since 1993 all of Three Trilliums’ stable annual funding has come from the MOH. Currently, Three Trilliums must enter into a service agreement with the Local Health Integration Network (“LHIN”) as a condition of receiving funding. Its current funding is $1.7 million annually. That budget amount is set by the MOH based on the previous year’s budget. There is no ability to carry over unspent amounts from one year to the next. Circumstances in which extra funding may be accessed are extremely limited.

16. At the time Ms. Boyce became Executive Director of Three Trilliums in 2001, there was no pay equity plan for the establishment. Her understanding was that it had been concluded by her predecessors in both 1994 and 1999 that no plan was required because there were no female job classes in the workplace, and it was her further understanding that the Pay Equity Office had been aware of, and in agreement with, the 1999 determination that no plan was required. Whatever the basis for concluding no plan was required, it does not appear to have been documented, and may possibly not have been premised on the lack of any female job classes in the workplace as it appears from material filed in this proceeding that the housekeeper job class has always been female dominated.

17. In 2003, agencies funded by the MOH could access special funds provided for the purpose of pay equity adjustments. Ms. Boyce was of the view that her staff were underpaid, and that their wages could be raised if these funds were accessed. She contacted the Pay Equity Office and met with a Review Officer, who advised her of his view that the job classes in the establishment were female, and that she should go ahead and prepare a proxy pay equity plan.

18. Ms. Boyce prepared and posted a proxy pay equity plan that she based on one prepared by an agency providing similar services. It identified all the job classes in the Three Trilliums establishment as female. Ms. Boyce also obtained a formal order that Three Trilliums was a “seeking employer” for the purposes of the proxy provisions of the Act.

19. The pay equity plan had an effective date of January 1, 1994. It was posted in the workplace on February 2, 2004, and was deemed approved 90 days later. The plan contained the following provision:

J. Pay Equity Adjustments Payable

Wages at Three Trillium Community Place will be adjusted at least 1% of total payroll per year until pay equity is achieved. Pay Equity adjustments will be retroactive to January 1, 1994. The parties recognize that additional funding is required from the Province of Ontario to meet these pay equity obligations.

20. Ms. Boyce submitted the 2003 Order declaring Three Trilliums to be a “seeking employer” to the MOH in order to access the funding being made available for pay equity adjustments. By letter dated March 31, 2004, she was advised her organization had been approved to receive proxy pay equity funding.

21. Three Trilliums’ liability for pay equity adjustments owing under the plan was retroactive to 1994 and amounted to $569,000.00. The money that Three Trilliums received from the MOH was not adequate to meet its retroactive liabilities. Essentially, Three Trilliums’ liability from 1994 to 1999 remains unsatisfied.

22. In 2005 a former Three Trilliums employee filed a complaint with the Pay Equity Office that she was owed pay equity adjustments that had not been paid. The Review Officer assigned to the file was not the same as the one with whom Ms. Boyce had previously dealt. Information was requested from Three Trilliums and it was provided in January 2006. Ms. Boyce did not hear from the Review Officer until more than a year later. In March 2007, she received a voice mail message indicating that the Review Officer thought Three Trilliums might not be a “public sector” employer under the Act and that he was seeking legal advice on the issue. Ms. Boyce had some further communication with the Review Officer at that time and forwarded him a list of the services that Three Trilliums provides to its clients. Three Trilliums ceased making pay equity adjustments pursuant to the plan at some point shortly after the prospect of it not being a public sector employer was raised.

23. In December 2009, Ms. Boyce received a survey from the Pay Equity Office in which it sought to ascertain if employers had met their pay equity targets. Receipt of this document prompted Ms. Boyce to call the Review Officer, who apologized for having misplaced the file, but said that it had been forwarded to the legal department for consideration and that his decision would be forthcoming. There was also some discussion at this time about the gender incumbency of the job classes in the establishment. Ms. Boyce e-mailed the Review Officer in March and April 2010. In June 2010 she was asked for, and provided, a copy of Three Trilliums’ agreement with the LHIN. On June 18, 2010, she received a voice mail message from the Review Officer, which she clarified in a follow-up telephone call. The crux of the message was that he had determined Three Trilliums was a public sector employer.

24. In July 2010 the Review Officer asked for information respecting Three Trilliums’ calculations of all the amounts owing under the plan, broken down by individual employee. Because this exercise entailed reviewing information dating back to 1994, Ms. Boyce was given until September 10, 2010 in which to provide it. The information she provided to the Review Officer, and on which the 2010 Order was based, was incorrect and failed to take account of some adjustments that had already been paid.

25. The 2010 Order does not address the question of whether Three Trilliums is a public sector employer, nor does it address any question relating to the gender incumbency of job classes. The narrative portion of the 2010 Order notes that Three Trilliums “does not dispute the facts” and that it had cooperated fully with the investigation. The Review Officer summarizes Three Trilliums position as follows: “The Employer claims financial hardship due to lack of funding and is not able to implement the pay equity plan”.

26. The 2010 Order determined that the principal retroactive amount owing under the plan was $875,916.71, and ordered Three Trilliums to pay this amount (plus interest thereon) within the month following the issuance of the 2010 Order. Ms. Boyce testified that the principal retroactive amount owing under the plan is incorrectly stated in the 2010 Order, and is in fact $753,507.03.

Analysis

27. Three Trilliums’ submission that the 2003 Order that made the seeking employer declaration should be rescinded was based entirely on its argument that it is not part of the public sector under the Act.

28. There was no opposing party challenging Three Trilliums’ interpretation of the Appendix of the Act that defines public sector. More significantly, there was no opposing party making any argument based on other provisions of the Act, the common law, or equitable principles, that Three Trilliums should not be permitted to raise this issue seven years after the fact, or to resile from the contractual consequences emanating from a declaration that it sought to have made.

29. We start with a brief overview of the proxy provisions of the Act.

30. Part III.2 of the Act contains the provisions respecting the proxy method of comparison. It applies to “those employees who are declared, by order of a Review Officer, to be seeking employers” (section 21.12(1)). A public sector employer with one or more female job classes that cannot be compared to a male job class in the establishment using the job-to-job methodology may be declared to be a seeking employer (section 21.12(2)). An order declaring an employer to be a seeking employer may be the subject of an objection to the Tribunal. Not surprisingly, that did not occur when Three Trilliums was declared a seeking employer, since Three Trilliums had itself invited the declaration.

31. Following the seeking employer declaration, Three Trilliums went on to prepare a pay equity plan using the proxy methodology. The plan provided for the adjustment of compensation on a go-forward basis, and also for the payment of arrears retroactive to January 1, 1994. Section 21.22(1) of the Act in fact specifically provides that a plan prepared using the proxy methodology must make the compensation adjustments required under it effective as of January 1, 1994. Three Trilliums’ pay equity plan was “deemed approved” under the Act (section 21.21(3) incorporating section 15(8)). The Act also provides that the plan is “binding” on the employer and the employees (section 21.18(3)). In the case of employees represented by a bargaining agent, the Act specifically provides that wage adjustments made pursuant to a pay equity plan are deemed to be incorporated into, and prevail over, the terms of the collective agreement applicable to those employees. This is true for all pay equity plans for bargaining unit employees, regardless of the comparison methodology used, but is specifically referenced in connection with the proxy methodology in section 21.18(4) of the Act. We conclude from this statutory language that the compensation adjustments provided for in a deemed approved pay equity plan constitute an obligation under the employment contract, whether that be an individual contract of employment or a collective agreement.

32. We turn now to the question of whether Three Trilliums is part of the “public sector” under the Act.

33. Section 1(1) of the Act defines “public sector” to mean “all of the employers who are referred to in the Schedule”.

34. The Schedule provides that the public sector in Ontario consists of “any authority, board, commission, corporation, office, person or organization of persons, or any class of authorities, boards, commissions, corporations, offices, persons or organization of persons, set out in the Appendix to this Schedule or added to the Appendix by the regulations made under this Act”.

35. Despite being fully funded by the provincial government, Three Trilliums nevertheless submits that it is not part of the “public sector” as defined in the Act because it is not an entity listed in the Appendix.

36. That portion of the Appendix dealing with the MOH does not define the general characteristics of the entities that comprise the public sector insofar as that Ministry is concerned, but merely lists them. A number of organizations are listed by name. Three Trilliums is not among them. Various classes of entities are also listed. The only one of these classes that might possibly encompass Three Trilliums is described as follows:

Ministry of Health and Long-Term Care

1. Any corporation or organization of persons, other than one that has no employees other than employees who directly or indirectly control it, that operates or provides,

(f) a home care facility within the meaning of the General Regulation made under the Health Insurance Act (R.S.O. 1990, c. H.6) or a facility which, by arrangement with any such home care facility,

(i) provides nursing, physiotherapy, occupational therapy, speech therapy, nutritional counselling, social work, homemaking or other services to persons in their homes that are insured home care services under the General Regulation made under the Health Insurance Act (R.S.O. 1990, c. H.6), and

(ii) is entitled to payment from the home care facility for or in respect of supplying such services;

37. Three Trilliums submits is not a “home care facility” within the meaning of the General Regulation (R.R.O. 1990, Regulation 552) made under the Health Insurance Act. We note that the section of the regulation defining home care facility was in fact revoked by O. Reg. 253/09. As the language read prior to revocation, to constitute a “home care facility” it would have to be an agency approved by the MOH to provide “home care services” as defined in the Regulation, and it provides none of the services listed:

EXTENDED CARE SERVICES

13. (1) In this section

“home care facility” means,

(a) a local board of health of a municipality or a health unit, or

(b) an agency,

approved by the Minister to provide home care services;

“home care services” means,

(a) the services that are provided, on a visitation basis, by a nurse or a nursing assistant,

(b) the services provided, on a visiting basis, by a physiotherapist, occupational therapist, speech therapist, social worker or nutritionist,

(c) the provision of dressing and medical supplies,

(d) the provision of diagnostic and laboratory services,

(e) the provision of hospital and sickroom equipment,

(f) the provision of transportation services to and from the home to a hospital, health facility or the attending physician’s office, as the case may be;

38. Three Trilliums is not a facility that provides services to its clients through arrangement with a “home care facility”. It provides services directly to its clients and at their direction. It is not directed by the CCAC (which could be a “home care facility”), and it is not paid by it. Although it has a service agreement with the LHIN which secures its funding, the LHIN does not fall within the definition of a “home care facility”.

39. Even if Three Trilliums were a facility that provides services through arrangement with a “home care facility”, it would only come within the language of the Appendix if it supplied “insured home care services” and none of the services provided by Three Trilliums are “insured home care services” under the Regulation. Three Trilliums submitted that while it might be possible to construe the requirement that services be insured as applying only to the “other services” noted in section 1(f)(i) of the Appendix pertaining to the MOH, with the consequence that an earlier-listed service, for example “homemaking” would not need to be an insured service for its provider to be public sector, such construction would be strained and not in accordance with the intention of section 1(f) as a whole, which, through its repeated references to the Health Insurance Act, is clearly intended to apply only to employers who are providers of insured services. We agree with that submission.

40. The only entity from which Three Trilliums receives money is the LHIN. The LHIN is not itself a “home care facility” and it funds Three Trilliums pursuant to an annual budget. The LHIN does not pay Three Trilliums on a fee-for-service basis for the services it provides to clients.

41. The Act does not define the public sector in any functional way. In particular, it does not simply equate an agency’s receipt of public funding with its constituting part of the public sector. Counsel for Three Trilliums noted that the Tribunal has held that it has little or no discretion when it comes to determining whether an entity comes within the Appendix. She referred specifically to one Tribunal decision (Pioneer Youth Services (c.o.b. PYS Associates Ltd.) v. Canadian National Federation of Independent Unions, [2002] O.P.E.D. No. 19), but there have been at least three decisions dealing with situations where the Tribunal has been called upon to determine whether an employer falls within the Appendix and is a public sector employer. It may be useful to refer to all of them.

42. Parkdale Focus Community Project v Group of Employees, [2000] O.P.E.D. No. 4, involved a MOH-funded operation which aimed to prevent residents from becoming substance-dependent. The Tribunal rejected the argument that the applicant did not fall within the class of MOH-funded “services related to addiction” because it was engaged in prevention rather than treatment. Not only did the Tribunal find as a matter of statutory interpretation that that language was broad enough to encompass Parkdale’s activities, but it also suggested that in the event of any ambiguity in the application of the Appendix, its language should be interpreted to encompass publicly funded agencies as falling within the public sector.

43. In Helen Henderson Care Centre v Service Employees’ International Union, Local 183, [2001] O.P.E.D. No. 12, the Tribunal addressed a situation where several employers operated adjoining privately-funded retirement residences and publicly-funded nursing homes. Employers holding a nursing home licence were listed in the Appendix. The Tribunal found that the employers each operated a single establishment comprising its retirement home and nursing home and must be considered public sector and required to use the proxy methodology with respect to the entire establishment. After the decision issued, the Appendix was amended to specify that an employer holding a nursing home licence was in the public sector “only with respect to its nursing home beds for which provincial funding was received”. On judicial review, the Divisional Court quashed the Tribunal’s decision (2005 CanLII 13791), holding that it was patently unreasonable for it not to have interpreted the Appendix as if it had already included that new language. The Court’s decision was premised on the notion that because it was never contemplated that the proxy provisions would apply to privately operated and funded businesses, an uncertainty was created that should have caused the Tribunal to look beyond the literal language of the provision in the Appendix for its meaning.

44. The decision in Pioneer Youth Services was released after the Tribunal had issued its decision in Helen Henderson, but before the Divisional Court had quashed that decision. The applicant employer had posted a pay equity plan in 1992 that was deemed approved, and which identified a particular job class as gender neutral. To the Tribunal in 2002, it asserted that the job class should have been identified as male. It also asserted that a seeking employer declaration made against it in 1999 was made in error because it was not a public sector employer. The applicant had not objected to the seeking employer declaration at the time it was made, and had in fact taken steps consequent upon it to employ the proxy methodology. The applicant’s basis for arguing that it was not a public sector employer was that it received no public funding. The Tribunal suggested that the applicant had waited too long to challenge the seeking employer declaration, but nevertheless found the applicant’s operations fell squarely within a class of enterprise listed in the Appendix to the Act, which class description was silent with respect to the source of funding. The Tribunal held that the source of funding could not take it out of the class.

45. The decisions mentioned above and the facts of this case raise the question of what scope the Tribunal has to give effect to the intention of the legislation, when its language appears to lead to a result inconsistent with that intention. In terms of what the Act’s intention is insofar as Part III.2 is concerned, the Divisional Court in the Helen Henderson judicial review decision expresses that intention negatively: its intention is not to subject privately-funded employers to the proxy provisions of the Act. The Tribunal in Parkdale suggests the positive corollary to that: in cases of ambiguity, publicly-funded employers should be subject to the proxy methodology provisions. The difficulty comes with cases like Pioneer Youth Services, where the language of the Appendix admits of no ambiguity.

46. Although some passages in the court’s reasons in Helen Henderson appear to suggest that an inconsistency between the intention of the legislation and the language used creates an ambiguity, our understanding is that where there is no ambiguity, the language of the legislation must prevail, notwithstanding it may fail to achieve the legislative intention. This view is supported by the reasons in Beattie v National Frontier Insurance Company, 2003 CanLII 2715 (ON C.A.), which squarely addresses the issue of what a court or tribunal must do when faced with a clear and unambiguous provision that not only does not further the intention of the statute but achieves the opposite effect. In that case, an individual involved in a single-vehicle motor accident was severely injured. He was charged with dangerous driving (an offence under the Criminal Code) in connection with the accident. A regulation promulgated under the Insurance Act relieved his insurer of the obligation to pay him statutory accident benefits (“SABs”) to which he would otherwise have been entitled from the point at which the charges were laid against him until they were disposed of. Instead, those benefits were to be held in trust and returned to the insurer in the event of conviction, or paid out to the insured in the event the insured was found not guilty. The regulation did not speak to the question of SABs entitlement after the criminal charges were disposed of. Mr. Beattie was convicted of dangerous driving. He was held to be disentitled to SABs from the laying of the charges until his conviction pursuant to the regulation, but to be entitled to SABs thereafter. There was no doubt that this was not the result intended by the regulation, as evidenced by the fact that parallel provisions in the same section permanently disentitled from the receipt of benefits an injured driver who engaged in what seemed to be the less egregious offences of driving without a valid driver’s license, or without valid insurance.

47. The insurer’s argument in the Beattie case was summarized as follows in paragraph 11 of the Court of Appeal’s decision:

11Counsel for the insurer concedes that the legislative purpose of s. 30 has not been achieved because s. 30(4) is not in harmony with s. 30(1) and (2) in that it fails to provide insurers the same exclusion contained in those provisions where the injured person has been found guilty of a criminal offence. Counsel points to the anomaly of the total loss of SABS by an injured person who was driving without a valid driver’s licence as required by s. 30(1)(b) and the partial loss of SABS under s. 30(4) by one convicted of impaired driving causing death. In counsel’s submission, this has created an absurd result that was not intended by the legislature. Where, as in this case, an injured person has been convicted of a criminal offence, counsel asks the court to “fix” s. 30(4) to ensure harmony with s. 30(1) and (2) by adding whatever language the court believes is required to achieve this result. In doing so, counsel quite properly informed the court that the legislature has taken steps to amend s. 30. He was of the view that the amendments, which had been drafted and approved, had not come into force. However, it would appear that at the time this appeal was heard, the amendments, which are in O. Reg. 281/03, were in effect.

48. The Court noted that “It is well-accepted that principles of interpretation may be used to resolve an absurd interpretation. However, this principle resolves conflicts where the words of a provision are reasonably capable of more than one meaning.” In support of this proposition, specific reference was made to the decision of the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, which counsel for Three Trilliums also filed with us. The Court’s reasons for rejecting the insurer’s argument in Beattie were therefore that the language of the regulation before it was clear and unambiguous and must be followed even if it led to a “manifest absurdity”, because the legislature is presumed not to make mistakes. With respect to the insurer’s request that the absurdity be “fixed”, the Court of Appeal had this to say:

16Section 30(4) uses language with the precision that one expects in modern legislation, yet s. 30(4) fails to achieve the legislative purpose of s. 30. Indeed, as a result of a likely drafting oversight, s. 30(4) has achieved the opposite purpose. While in some cases the court will come to the rescue of the legislature by correcting its drafting error, these cases involve minor and obvious errors that can easily be corrected, unlike this case in which the correction of the error as proposed by the insurer would involve a substantial exercise in impermissible judicial redrafting. Moreover, in asking the court to do so, the insurer recognizes that the textual meaning of s. 30(4) is plain and clear.

49. The legislature may have intended that all publicly-funded employers be considered “public sector” employers. Instead of saying simply that, however, it provided the Appendix naming some specific employers and describing others by class. It did not name Three Trilliums, nor does Three Trilliums fall within any of the classes of employers described in the Appendix under either MOH (or indeed under MCSS which funded it until 1993). There is no viable alternative reading of the class description in section 1(f) of the Appendix pertaining to the MOH that would lead to a conclusion that Three Trilliums falls within that class. Nor is it possible in our view to simply “tweak” the section 1(f) or any of the other classes under MOH in the Appendix so that Three Trilliums would fall within it. Instead, what would be required for Three Trilliums to be captured in the Appendix it seems to us would amount to either a substantial redrafting, or more realistically, the description of a new class of employers, expressly recognizing the funding relationship to the LHINs, as occurred with respect to addiction services, community health services, detoxification centres and placement services (subsections 1(h) to (j) of the Appendix pertaining to the MOH).

50. O. Reg. 396/93 under the Act deals with the proxy method of comparison. It contains some definitional sections, but none that capture the activities of Three Trilliums. It goes on to list a Schedule of pairs of “seeking” and “proxy” employers. Among the “seeking employers” it identifies under the heading “Health Care Services” “employer providing health and personal support services (including visiting homemakers and home care facilities)”, which appears to correspond to the class of employers in section 1(f) of the Appendix pertaining to the MOH. Under the heading “Services for People with Disabilities” it includes “employer providing services for persons with physical disabilities”. The latter would encompass the activities of Three Trilliums, but it cannot expand the ambit of what the Act (and its Appendix) has included as coming within the “public sector”. At best, it may evidence a legislative intention that employers providing publicly funded services be considered part of the public sector for the purposes of the Act.

51. In summary, we agree with Three Trilliums’ argument that it is not an employer engaged in any operations that fall within the Appendix, and that although this may be an oversight, it is not one that the Tribunal can “fix”, but rather requires legislative redrafting. Notwithstanding this conclusion, however, we see no basis for rescinding either the 2010 Order or the 2003 Order (even if it were appropriate to do so after the length of time that has elapsed since it was made).

52. Regardless of whether Three Trilliums had to post a pay equity plan (private sector employers with fewer than 100 employees are not obliged to do so under the Act), it did post a plan. Regardless of whether it could be legally compelled to employ the proxy methodology in concluding that plan, it did use that methodology. The adjustments that it determined must be made based on that methodology were set out in a plan that became deemed approved 90 days after posting, and they became part of each employee’s contractual entitlement. That result is binding upon Three Trilliums.

53. Three Trilliums may have had a compelling basis for an objection to the 2003 Order making the seeking employer declaration. It did not object, however, and instead prepared a plan consequent upon the 2003 Order. Rescinding the 2003 Order does not rescind the contracts entered into pursuant to it. The force of the 2003 Order has been spent.

54. In summary, Three Trilliums is fully funded by the MOH, and operates pursuant to policies promulgated by the Ministry. It does not fit within any of the categories of entity listed in the Appendix of the Act as constituting the public sector, perhaps due to oversight. Three Trilliums did not object when it was declared a seeking employer and it proceeded to use the proxy methodology to prepare a pay equity plan and to apply for proxy funding from the MOH, which application was approved. The pay equity plan binds Three Trilliums and its employees and the adjustments provided for in it must be considered incorporated into their employment contracts. Three Trilliums’ outstanding liability under the terms of the plan is $753,507.03.

55. We vary the 2010 Order to reflect that Three Trilliums’ outstanding liability under the plan is $753,507.03. Varying the 2010 Order in this manner was an alternative position of Three Trilliums, and we were not requested to address any question of the timing of the payment or the calculation of interest. On that basis we assume that the provisions of the 2010 Order with respect to those matters are not in dispute, such that the only other variation to the 2010 Order that we need make is to specify that the amount ordered be paid within 30 days of the date of this decision. We note that there are a large number of individuals identified in Schedule A to the 2010 Order, and that Three Trilliums may encounter some difficulty in locating them or arranging for payment to them within 30 days, and we are prepared to entertain further submissions on these points.

Disposition

56. We decline to rescind the 2003 Order.

57. The 2010 Order is varied to provide that the principal retroactive amount owing on account of pay equity adjustments is $753,507.03, and to provide that the date by which that amount must be paid is August 16, 2011.

58. Should Three Trilliums desire to make submissions respecting the August 16, 2011 deadline for compliance, or any other issue arising with respect to the implementation of our decision, it may do so by filing written submissions with the Registrar.