2783-09-PE Maitland Manor Health Care Centre, Applicant v. Rick Mattuci, Lori Stephens, Denise Lockie, Natalie Miltenburg, Amanda Beddow, Becky Jarvis, Angela Leggatt, Beth Sorensen, Crystal Agombar, Karen Eckenswiller, Joan McDougall, Responding Parties v. Pay Equity Office, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair; Paul LeMay and Pauline R. Seville, Members.
APPEARANCES: Lisa Corrente for the applicant; Stephen Huff, Rick Mattucci and Lori Stephens for the responding parties; Senka Dukovich, Emanuela Heyninck and Tiziana Isgro for the intervenor.
DECISION OF THE TRIBUNAL: August 29, 2012
This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) for review of an Order dated, November 12, 2009 issued by Review Officer Tiziana Isgro (“the Officer”).
Following receipt of an anonymous complaint in 2004 and a subsequent investigation, the Officer concluded that the applicant’s proxy pay equity plan for non-union employees and amended proxy pay equity plan posted in 1995 and 2006 respectively failed to comply with the Act. Specifically, the Officer found that the employer did not comply with all the requirements under subsection 28.18(2) which sets out the elements of a proxy pay equity plan under Part III.2 of the Act. It would appear that the Officer also found that the employer did not comply with section 21.13 which requires comparisons between certain job classes in the seeking employer’s and proxy employer’s establishments. The Officer’s Order essentially directed the employer to take steps to develop a proxy pay equity plan that complied with the Act as of and following 1994, including the payment of any required adjustments from 1994 until 2009.
The applicant’s position is that the Order should be revoked for the following reasons:
(a) Maitland Manor's pay equity plans for its non-union employees
(together, the "Non-Union Plans") were implemented in compliance with the proxy method of comparison under the PEA and are valid plans;
(b) The Non-Union Plans meet the objectives of the PEA and redresses systemic gender discrimination in compensation for work performed by employees in female job classes;
(c) If implemented, the Order would result in considerable wage disparities between female employees working in the long-term care industry across the province. In the circumstances, the Order would result in absurd consequences based on an irrational distinction, contrary to the purpose of the PEA;
(d) The Non-Union Plans were deemed approved by the Pay Equity Commission (the "Commission") given that no timely objections were filed by the affected employees;
(e) Review Officer Isgro (and the Commission) are without jurisdiction to investigate this matter and to make the Order at issue; and
(f) There has been significant delay by the non-Union
employee(s) in objecting to the Non-Union Plans and by the Commission in its investigation. This undue delay has substantially prejudiced Maitland Manor and amounts to an abuse of process and breach of procedural fairness.
- The Pay Equity Office (“the PEO”) was granted intervenor status in a decision of the Tribunal dated November 5, 2010. Subsequently, the PEO moved to strike the applicant’s pleadings with respect to abuse of process. That motion transformed into a broader one: that the applicant has failed to plead a prima facie case regarding:
i. abuse of process;
ii. the contention by the applicant that the non-union pay equity plan was deemed approved; and
iii. the contention of the applicant that it complied with the proxy provisions of the Act.
The Tribunal heard the submissions of the participating parties over the course of two days, and directed and received further written reply submissions from the PEO. Counsel for the applicant took issue with the propriety of the reply submissions, but we have determined that it is not necessary to deal with those concerns given the reasons in this decision.
There was no dispute between the parties concerning the test for a prima facie case: assuming the applicant’s pleaded facts to be true and provable, does the applicant’s “best case” provide the basis for a remedy from the Tribunal?1 The Tribunal will dismiss an application (or a part thereof) on a prima facie basis only if it concludes that the application as pleaded has no reasonable prospect of success. Accordingly, the threshold to maintain an application and have it heard on the merits is not particularly a high one. If the Tribunal is persuaded that, having regard to the applicant’s pleadings, it could provide a remedy, then the applicant is entitled to a consideration by the Tribunal of the merits of the application. In this matter, there are three distinct aspects of the application that the PEO contends do not establish a case for a remedy in the applicant’s favour, and therefore, depending on the answer to the applicable test, any one or more of those three aspects may proceed or not to a hearing.
We begin with the issue of abuse of process. The applicant’s allegations regarding abuse of process, which for the purposes of this decision we assume to be true and provable, are as follows:
Maitland Manor is a public sector employer within the meaning of the PEA. It applied both the job-to-job and proportional value comparison methods in its establishment and was not able to achieve pay equity for its female job classes. Accordingly, Maitland Manor notified the Commission of its inability to achieve pay equity using either of the first two methods of comparison.
By Order dated June 30, 1995, the Commission determined Maitland Manor to be a "seeking employer" under s.21.12(2) of the PEA to which the proxy method of comparison applied.
On November 8, 1995, Maitland Manor advised the Commission that it had posted pay equity plans for its Union Employees and Non-Union Employees (together, the "Pay Equity Plans"). The Pay Equity Plans were posted on June 30, 1995.
The pay equity plan for the Non-Union Employees (the "1995 Non-Union Plan") was entirely consistent with the pay equity plans signed by Maitland Manor and the Unions with respect to the Union Employees. That is, the 1995 Non-Union Plan was based on a proxy comparison which identified the position of health care aide as the key female job class and compared it to the identical female job class at unionized municipal homes for the aged across Ontario. All positions held by the Non-Union Employees were deemed to be female job classes which received a total pay equity wage adjustment of $1.50 retroactive to January 1, 1994.
None of the Non-Union Employees submitted comments to Maitland Manor with respect to the 1995 Non-Union Plan after it was posted.
Immediately following the 90-day review period from the posting of the 1995 Non-Union Plan, Maitland Manor posted a notice to advise that the 1995 Non-Union Plan, as posted, had not been amended, in accordance with s.15(6) of the PEA.
Significantly, no objections to the 1995 Non-Union Plan were filed with the Commission by the Non-Union Employees within the 30-day period prescribed by subsection 15(7) of the PEA. Accordingly, over the next several years, Maitland Manor completed the pay equity wage adjustments pursuant to the 1995 Non-Union Plan. The last pay equity adjustment was made in 2005, at which time Maitland Manor achieved pay equity for the Non-Union Employees.
Approximately nine (9) years later, in March 2004, the Commission received an Application for Review Services from the Anonymous Employee.
On March 11, 2004, a file was opened by the Commission which was assigned to Review Officer Dianne Parson. Review Officer Parson contacted Maitland Manor more than two (2) years later, in April 2006, to request documentation regarding the Pay Equity Plans which had been implemented at the establishment. This documentation, including the 1995 Non-Union Plan, was provided to Review Officer Parson on April 28, 2006.
Four (4) months later, on August 21, 2006, Review Officer Parson advised Maitland Manor of her view that the 1995 Non-Union Plan did not meet the proxy requirements of the PEA. She did not take issue with the pay equity plans which had been implemented for the Union Employees.
In response, by letter dated August 25, 2006, Maitland Manor (through its consultant, Bob Bass at Bass Associates Ltd.) explained to Review Officer Parson its view that the 1995 Non-Union Plan had properly achieved pay equity for the Non-Union Employees. That is, the 1995 Non-Union Plan had been developed according to the same proxy method of comparison applied by Maitland Manor in conjunction with the Unions for the Union Employees. Mr. Bass made a minor technical correction to the 1995 Non-Union Plan and provided an amended pay equity plan to Review Officer Parson (the "2006 Non-Union Plan"). He then invited Review Officer Parson to contact him if she had any further concerns.
The 2006 Non-Union Plan was posted by Maitland Manor on August 25, 2006. Immediately following the 90-day review period from the posting of the 2006 Non-Union Plan, Maitland Manor posted a notice to advise that the 2006 Non-Union Plan, as posted, had not been amended. Again, no objections to the 2006 Non-Union Plan were filed with the Commission by the Non-Union Employees within the 30-day period prescribed by subsection 15(7) of the PEA.
Following the aforementioned communications between Review Officer Parson and Maitland Manor, no further action was taken by the Commission with respect to either of the Non-Union Plans (i.e. the 1995 Non-Union Plan and the 2006 Non-Union Plan) for another eighteen (18) months.
Maitland Manor was not contacted by the Commission again until March 26, 2008, when it received a letter from Review Officer Isgro (who had been reassigned to the file on January 2, 2008). In that letter, Review Officer Isgro took the position that neither of the Non-Union Plans complied with the PEA.
By letter dated April 16, 2008, Maitland Manor advised Review Officer Isgro that the delay by the Commission (i.e. a delay of four (4) years since receiving the Application for Review Services and nearly twenty (20) months since the 2006 Pay Equity Plan had been posted), in dealing with the file had resulted in material prejudice to Maitland Manor. In particular, Maitland Manor noted that it would have mitigated any potential liability by characterizing all wage adjustments since August 2006 as pay equity adjustments. Maitland Manor requested additional time to consider Review Officer Isgro's position.
Thereafter, on November 10, 2008, Maitland Manor reiterated its position to Review Officer Isgro that the Non-Union Plans complied with the PEA.
A year later, on November 12, 2009, Review Officer Isgro issued the Order pursuant to ss.24(l) and 24(3) of the PEA. She found that Maitland Manor had not implemented pay equity in compliance with the proxy method of comparison prescribed by the PEA. She also found that the Non-Union Plans were not deemed approved pay equity plans.
The Tribunal recently dealt with, and found, delay amounting to abuse of process in Queensway Nursing Home 2010 CanLII 56873 (ON PEHT) in circumstances very similar to the case before us. In that case, there was a lengthy delay of eight years in filing a pay equity complaint with Review Services by an employee of a nursing home, and another five years passed before a Review Officer issued an order against the nursing home. The Tribunal determined that compliance with the order by the nursing home was impossible, and that the delay on the part of the individual complainant and the Pay Equity Office compromised the nursing home’s right to a fair hearing and amounted to an abuse of process, thus justifying rescission of the Review Officer’s order. (Moreover, the Tribunal rejected a subsequent request for reconsideration by the PEO: [2010] O.P.E.D. No. 34. In the course of its reasons in the reconsideration decision, the Tribunal rejected the PEO’s assertion that there was no prima facie case disclosed by the nursing home’s application: see paragraph 43.)
Having regard to the facts alleged by the applicant in paragraph 7 above, and having regard to the result in the Queensway decisions, we cannot conclude there is no reasonable likelihood that the Tribunal would not grant the applicant any relief under this heading. The PEO is entitled to take issue with the decisions in Queensway Nursing Home, and to argue that they are wrong or ought not to be followed. However, that is a matter for final argument, after a consideration of the evidence.
The PEO contends that the applicant did not raise delay, prejudice and abuse of process as issues during the investigation by the Officer of the complaint, and that therefore, these issues are not properly before the Tribunal. In this regard we were referred by the PEO to Kensington Village (200 – 01), P.E.R. 1 where the employer in that matter indeed raised new issues in its amended application seeking revocation of a Review Officer’s order that were not raised during the Review Officer’s investigation. In short, the employer took the position before the Tribunal that the pay equity plan to which it was a party was invalid, whereas during the Review Officer’s investigation the employer’s position was not that the pay equity plan was invalid, but rather that the employer was not required to make the payments stipulated under the pay equity plan because it had not received government funding to cover those payments. The Tribunal ruled that the validity of the pay equity plan was not properly before it because it had not been raised earlier at Review Services. In other words, the Review Services process had not been exhausted before the Tribunal’s adjudicative process was engaged. The employer’s application to the Tribunal effectively “short circuited” the Review Services process.
The facts in this case are different. Although the issue of delay, prejudice and abuse of process may not have been fully canvassed in the investigative stage involving the Officer, the applicant did complain about delay during the investigation. The applicant complained that the Pay Equity Commission’s 18-month delay in responding to the applicant’s correspondence of August 25, 2006 (see subparagraph 17 of paragraph 7 above). Specifically, the applicant stated that the delay had caused it material prejudice in the sense that it had been deprived of an opportunity to mitigate its pay equity liability. The Officer rejected that argument. In fact, the Officer stated that the applicant, having implemented a non-compliant non-union pay equity process (in 1995), had to bear all attendant consequences.
Although the applicant did not specifically raise concern about the 9-year delay occasioned by the anonymous complaint filed with Review Services, or the subsequent two year delay by the Pay Equity Commission in advising the applicant that a complaint had been filed, it appears likely that those arguments would have had little or no bearing on the Order that issued. Accordingly, we are not prepared to dismiss the application on a preliminary on the basis of the PEO’s submission that the Review Services process was not exhausted.
The PEO goes on to suggest that the applicant has failed to make out a prima facie case that its non-union pay equity plan was deemed approved under the Act. The applicant’s pleadings on that issue include subparagraphs 9 to 13, reproduced in paragraph 7 above.
The argument by the PEO is that, even if the process described by the applicant in the above pleadings concerning the posting of the 1995 non-union pay equity plan and the subsequent events are accurate, the pay equity plan did not comply with Part I of the Act and therefore it could not be a deemed approved plan within the meaning of the Act.
Again, this is more in the nature of a legal conclusion to be drawn from the facts. In our view, however, the facts alleged by the applicant could on their face arguably lead to a conclusion that there was a deemed approved pay equity plan. Those facts establish, for the purposes of this motion, that a pay equity plan was posted, that the employees to whom it applied made no comment about the plan to the applicant within the statutory time limits, that the applicant notified the employees that the plan as originally posted had not been amended as a result of any employee comments, and that, following that notification, no objections to the plan were filed by the employees within the time limits set by the Act. That in our view is sufficient to make out a prima facie case of a deemed approved plan.
We turn to the third aspect of the PEO’s motion. As indicated, the PEO submits that the applicant has failed to make out a case of its claim that its non-union pay equity plan complied with the proxy provisions of the Act. In response, the applicant points us to the following pleadings in its application, and argues that it has made out a case that its non-union pay equity plan complies with the Act:
Maitland Manor states that the Non-Union Plans were implemented in compliance with the proxy method of comparison under the PEA and are valid pay equity plans. The Non-Union Plans were created using the same comparisons and results used to develop the pay equity plans for the Union Employees. The Tribunal has held that such pay equity plans (i.e. the pay equity plans implemented for the Union Employees) meet the requirements of the PEA when they are applied to non-union employees.
By way of background, in 1993, when the proxy method of comparison was first introduced into the PEA, the rates of pay in the nursing home industry were set in large measure by a series of group bargaining processes involving a variety of participating employers and unions. These long-standing central bargaining processes in the nursing home industry had resulted in a certain degree of uniformity of rates of pay in the sector.
With the enactment of the proxy provisions, nursing homes were required to select an appropriate proxy organization to compare female job classes. In particular, nursing homes were required to select "homes for the aged operated by one or more municipalities" as their potential proxy employer.
Unlike nursing homes, municipal homes for the aged had no central bargaining process. Their rates of pay, collective bargaining and pay equity were driven by the local municipal bargaining for inside and outside workers. Accordingly, the wage rates for employees in municipal homes for the aged varied dramatically from municipality to municipality. Consequently, if each nursing home in the province were to apply the proxy method of comparison using its nearest municipal home for the aged as the proxy employer, wide variations in wage rates among nursing home employees would result. Moreover, given that government funding for nursing homes is based on a formula applied consistently to all nursing homes in Ontario irrespective of the operator's actual costs, such wide variations in wage rates would have been detrimental to the nursing home industry in this province. There was a genuine concern, which subsequently turned out to be well-founded, that the provincial government would not fund proxy pay equity obligations indefinitely into the future.
To address these concerns, various unions and groups of employers in the nursing home industry worked together to achieve a province-wide pay equity plan that provided for a common increase (rather than a common final rate of pay) for any given job classification. Unions and employers believed that a province-wide pay equity plan would be in their mutual interest as it would:
(a) achieve substantial pay equity adjustments for employees in nursing homes across the province;
(b) prevent significant wage disparities among nursing home employees working in different regions;
(c) optimize the chance that some or all of the pay equity adjustments would be funded by government;
(d) arrive at a common result for all employers and unions; and
(e) eliminate the risk that employees would be laid off and resident care would be adversely affected by an unfunded pay equity wage adjustment.
The province-wide pay equity plan came to be known as the "$1.50 Plan". Nursing homes and unions across the province agreed that the proxy method of comparison would involve comparing the key female job class of health care aide in the seeking employer's establishment to the identical female job class in the proxy employer's establishment. Unionized municipal homes for the aged across Ontario were selected as the proxy employer. As a result of this proxy comparison, the parties negotiated a total wage adjustment of $1.50 for all female job classes to be implemented retroactively to January 1, 1994. The parties agreed that the $1.50 wage adjustment would achieve pay equity.
The $1.50 Plan was found to comply with the PEA by both the Commission and the Tribunal, save and except for the part which provided that pay equity adjustments would be made following the receipt of government finding. Accordingly, this part relating to receipt of government funding was removed from the $1.50 Plan.
By mid-summer 1995, virtually all the unionized nursing homes in Ontario adopted the $1.50 Plan for both their union and non-union employees. Maitland Manor and the Unions signed the province-wide $1.50 Plan for the Union Employees. Thereafter, Maitland Manor applied the same proxy comparison for the Non-Union Employees to arrive at the 1995 Non-Union Plan (and subsequently, the 2006 Non-Union Plan).
Review Officer Isgro is of the view that the Non-Union Plans do not comply with the PEA because Maitland Manor applied pay equity results determined through negotiations with the Unions to its Non-Union Employees. She states:
Most often union jobs are paid higher wages than non-union jobs, likely have greater benefits and usually offer a pension plan whereas the employer may not offer these to its non-union employees or, if it does, not to the same degree. If this is true at Maitland Manor, then the same $1.50 that may achieve pay equity for the unionized jobs may not be enough to achieve pay equity for the non-union jobs. The Employer's pay equity result is based on a comparison that was made by other employers, for unionized job classes, on the basis of one comparison made between the unionized nursing home Health Care Aid and the proxy Health Care Aid job class. That comparison is not equally applicable to non-union jobs at Maitland Manor.
However, Review Officer Isgro's assumption that union jobs pay higher wages than non-union jobs is incorrect and is based entirely upon conjecture. At Maitland Manor, given the small compliment [sic] of non-union positions relative to the unionized positions, union wages and benefits have beneficially influenced wage rates and benefits for the non-union positions. By way of example, the compensation paid to the Director of Care is determined relative to the remuneration paid to the unionized registered nurses which she supervises.
Even if Review Officer Isgro's assumption were correct (which it is not), the wage gap in the 1995 Non-Union Plan was determined by comparison between unionized health care aides in nursing homes versus their identical unionized counterparts in municipal homes for the aged. The gap was not determined as between union and non-union jobs. If non-union jobs in nursing homes were paid low relative to their unionized counterparts, one must also assume that the non-union jobs in municipal homes for the aged would likewise have a non-union discount. The gap would not be any greater. Maitland Manor used a representative position from the municipal homes for the aged and compared it to a representative position in nursing homes to fairly determine the wage gap.
There can be no doubt that the position of health care aide is the key female job class in nursing homes. Therefore, the compensation practices for other job classes derive from the treatment of health care aide as the key classification. The hours worked by all staff in a nursing home are dominated by health care aides.
Similarly there can be no doubt that the duties, responsibilities, education and working conditions of a health care aide in a nursing home are similar to that same classification in a municipal home for the aged. Not only are the duties, responsibilities, education and working conditions similar, but they are identical.
In the circumstances, it is not surprising that all service unions agreed that health care aide was the key female job class in nursing homes at the time that the $1.50 Plan was negotiated for the industry, Significantly, the Ontario Nurses' Association also agreed that the position of health care aide represented the key female job class to determine the gap for bargaining units which were populated solely by registered nurses.
Moreover, contrary to Review Officer Isgro's findings, the Tribunal has held that the application of the province-wide $1.50 Plan to non-union job classes at a particular establishment does achieve pay equity under sections 21.11 to 21.23 of the PEA. Indeed, in Royal Crest Lifecare Group, [2002] O.P.E.D. No. 27 (QL), the Tribunal required the employer to apply the province-wide $1.50 Plan to its non-union employees in order to achieve pay equity. The Tribunal held:
The Employer was identified as a seeking Employer, required to use the proxy method of comparison. The initial pay equity plans posted by the Employer in June 1995 indicated that the proxy methodology had been used and identified that the job class of health care aide had been selected as the key female job class to be used as the basis for comparison, which was then compared to the identical job class in the proxy establishment. The Tribunal understands from [the Employer] that this was the methodology used by the Employer (and a number of other nursing home Employers) in their pay equity negotiations with the bargaining agent representing their unionized staff [The Employer] testified that on the advice of their consultant, the Employer decided to apply the same outcome to the non-union staff, with the result that, as in the unionized plans, the job rates of female job classes would be adjusted by $1.50. (emphasis added)
As of the date of the implementation of this decision, the job rate for each female job class is adjusted by the addition of $1.50 per hour.
In view of the Tribunal's decision in Royal Crest, the fact that Maitland Manor applied pay equity results that were the product of industry-wide negotiations between nursing homes and unions across Ontario to its non-union job classes, therefore, establishes that pay equity was achieved for the Non-Union Employees.
Maitland Manor states that its choice of proxy employer complies with s.21 .14(2) of the PEA and OReg. 396/93.
Maitland Manor states that it adhered to the requirements of s.21.13 of the PEA in completing a proxy comparison for its Non-Union Employees.
Maitland Manor further states that the Non-Union Plans comply in form and substance with the requirements of s.21.18(2) of the PEA.
For these reasons, Maitland Manor submits that the Non-Union Plans comply with the proxy method of comparison under the PEA and are valid pay equity plans.
Maitland Manor submits that the Non-Union Plans capture the spirit and achieve the purpose of the PEA. Section 4(1) of the PEA states that the purpose of the legislation is to redress systemic gender discrimination in compensation for work performed by employees in female job classes. In order to achieve this stated purpose, Maitland Manor adhered to a proxy method of comparison for its Non-Union Employees which had been accepted by nursing home employers and unions across the province as achieving pay equity for the industry.
As mentioned in paragraphs 27 to 29 above, when negotiating the $1.50 Plan, industry stakeholders selected unionized municipal homes for the aged across Ontario as the proxy employer specifically to prevent wage disparities among different regions. That is, wage rates among municipal homes for the aged varied substantially from one municipality to another. Therefore, if the nearest municipal home for the aged had been selected as the proxy employer by a nursing home employer, wage rates for nursing home employees would vary significantly depending on the municipality in which they worked. Such wage disparity based simply on the location of the nursing home in a particular municipality was an unforeseen and unintended consequence of the PEA. It was an unfair outcome which was avoided by the $1.50 Plan.
By adopting the $1.50 Plan for its Non-Union Employees, Maitland Manor avoided the wage disparity which likely would have resulted if a single municipal home for the aged had been used as the proxy establishment. Thus, the Non-Union Plans are consistent with the objectives of the PEA.
Conversely, the Order made by Review Officer lsgro, if implemented, would result in unfair wage disparities amongst nursing home employees, which is contrary to the spirit of the PEA. For instance, requiring Maitland Manor to select a single municipal home for the aged as the proxy establishment would result in substantial wage discrepancies between its Non-Union Employees and those employees working in nursing homes located in other regions. In addition, Maitland Manor could be required to make additional adjustments to the wage rates for its Non-Union Employees while the Union Employees would not receive similar adjustments - thereby creating wage disparity amongst the employees at Maitland Manor. Such an absurd result (i.e. wage disparity) would be based on irrational distinctions (i.e. whether or not the employee is a member of a union and/or the municipality in which the nursing home is located), which is contrary to the purpose of the PEA.
First, we note that the applicant’s pleadings include a number of legal conclusions (as opposed to facts) that we are neither obligated nor inclined to accept for the purposes of the prima facie motion. For example, the applicant contends in paragraphs 24 and 30 of its pleadings that the Tribunal has held that similar union pay equity plans met the requirements of the Act, and in paragraph 38, that the application by nursing home employers of the union pay equity plans to their non-union employees was found by the Tribunal to achieve pay equity within the meaning of the Act. Those are not facts we are prepared to accept as true and provable. They are in the nature of legal arguments. We do accept for purposes of this motion the facts alleged by the applicant detailing the development of the so-called $1.50 union pay equity plan in paragraphs 25 through 30. We also accept as provable the applicant’s allegations of fact in paragraphs 35, 36 and 37.
As the PEO points out, the proxy comparison provisions of the Act cited by the applicant require an employer to take a number of steps to achieve compliance in respect of pay equity plans using the proxy method. Subsection 21.18(2) provides that such a pay equity plan must:
identify the establishment to which the plan applies;
identify the key female job classes of the seeking employer;
identify the proxy employer and the proxy establishment;
identify the female job classes in the proxy establishment with which the key female job classes of the seeking employer were compared and set out their pay equity job rates;
identify the female job classes in the seeking employer that not key female job classes and there were compared with the key female job classes;
describe the gender-neutral comparison system used for the purpose of making the comparisons;
describe the methodology used for the calculations required by the
comparisons;
set out the value of work performed in each job class that was compared with another job class; and
set out the results of the comparisons.
There are no facts alleged by the applicant that demonstrate the applicant took the steps required by subsection 21.18(2).
That being said, the applicant points out at paragraph 57 of its application that the Officer did not find, (nor did the anonymous complainant allege) that the applicant violated Part I of the Act. The applicant contends that the Officer was without jurisdiction to investigate the complaint in the absence of an allegation of a breach of Part I. Assuming without deciding that the applicant posted a deemed approved pay equity plan, it is arguable that the applicant’s compensation practices (the granting of the $1.50 increase) achieved pay equity in compliance with Part I. That may be exceedingly difficult for the applicant to prove or to argue convincingly, but that is not a reason to deprive it of the opportunity to do so at this stage of the hearing. The Tribunal declines to dismiss the application simply because it raises a novel issue.
We have reviewed and considered the submissions filed by Mr. Huff on behalf of the responding party, Joan McDougal. These submissions go to the merits of the application, and were not responsive to the substance of the PEO’s preliminary motion.
The motion of the PEO is dismissed.
This matter may be scheduled for a further hearing date.
We are not seized.
Dated at Toronto this 29th day of August, 2012.
“Patrick Kelly” _____
Patrick Kelly, Vice-Chair
“Paul LeMay”___________
Paul LeMay, Member
“Pauline R. Seville”_______
Pauline R. Seville, Member