PEHT Case No: 0215-17-PE
Diana Reynolds, Dawn Khoury, Tara Deguerre, Sylvia Fader, Lynda Gidden, Christine Ferguson, Donald Squires, and Laura Mawhinney, Applicants v Southlake Residential Care Village, Respondent
BEFORE: Patrick Kelly, Vice-Chair
DECISION OF THE TRIBUNAL: July 24, 2017
This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) brought by Diana Reynolds on behalf of herself and seven other employees (“the applicants”) of the respondent, Southlake Residential Care Village (“the employer” or “Southlake). The applicants take issue with a Notice of Decision dated March 27, 2017 of a Review Officer Kadi Nabé. Review Officer Nabé concluded that Southlake had not contravened the Act.
In its response to the application, the employer says that a number of the applicant’s allegations fail to disclose any violation of the Act. Essentially this is a contention that there is no prima facie case that the employer has failed to comply with the Act, and consequently, that the application should be dismissed now, without a hearing, rather than permit the applicants to proceed to a hearing where they have no reasonable prospect of obtaining a meaningful remedy.
To make out a prima facie case, the applicant must allege facts, which, if proven, would constitute a basis in law for revoking the Review Officer's Order. In numerous cases, the Tribunal has held that an application will be dismissed if the pleadings disclose no prima facie case: See Peterborough (1991), 2 P.E.R. 86; Parry Sound District General Hospital (No.2,) (1996), 7 P.E.R. 73; Villa Colombo (1997), 8 P.E.R. 133. When the Tribunal considers a prima facie motion, it assumes that all of the facts alleged by the applicant are true and provable. The Tribunal may also take into account any other undisputed facts.
What appears undisputed is the following. Southlake, a long-term care facility licensed by the Ministry of Health and Long Term Care, is a successor employer to Arbor Living Centers, which became insolvent. Arbor Living Centers was the subject of a Proxy Order issued by a Review Officer, which applied to both union (Canadian Union of Public Employees) and non-union employees. According to the March 27, 2017 Notice of Decision of Review Officer Nabé, Arbour Living Centers developed a deemed approved proxy pay equity plan for union and non-union employees.
It would appear that, following a complaint in March 2013 by the applicants to the Pay Equity Commission concerning the employer’s refusal to provide them copies of salary information, and the Commission’s subsequent request of Southlake to prove that it had achieved and maintained pay equity, the employer was unable to satisfy the Commission. Thus, in June 2013, a Review Officer directed Southlake to develop a proxy pay equity plan for the non-union group of employees, and the employer took a series of actions, including obtaining information from proxy employers, selecting a gender neutral comparison system (the same GNCS used to evaluate the CUPE bargaining unit employees), gathering job information in respect of, and evaluating, the non-union job classes, and identifying three key female job classes – Registered Practical Nurse, Personal Support Worker and Housekeeper.
Following a somewhat complicated review of historical wage data and the development of a wage line, the employer determined that only the non-union female job classes of Hairdresser and Volunteer Coordinator warranted pay equity adjustments. The reason for the Hairdresser adjustment was that a wage gap had emerged in respect of that job class in 2008. The Volunteer Coordinator job class was created in 2010, and a wage gap also emerged at that time, which the employer addressed with the adjustment payout retroactive to 2010.
On November 4, 2015, the employer posted the new proxy pay equity plan (hereinafter referred to as “the posted plan” or “the plan”) in the workplace for the non-union employees. A month earlier, on October 2, 2015, it held a voluntary information session with the non-union employees to explain the process by which the pay equity plan was developed.
On January 11, 2016, a letter of objection to the pay equity plan signed by seven of 13 employees covered by the pay equity plan was delivered to Southlake. On February 7, 2016 Southlake responded to each objector in writing, and, on the same date, posted a notice pursuant to subsection 15(6) of the Act advising that the pay equity plan would not be amended. No employee made an objection with the Pay Equity Commission within 30 days of the February 7, 2016 posting, as contemplated under subsection 15(7) of the Act. Thus, the non-union pay equity plan was deemed approved by the Pay Equity Commission by operation of subsection 15(8) of the Act.
We turn to the submissions contained in Southlake’s response to the application that suggest that several of the applicants’ pleaded facts disclose no violation of the Act.
First, the applicants plead that not all non-union employees were notified of the information meeting conducted by Southlake and its legal counsel on October 2, 2015. As the employer submits, this fact, if proven, would not appear to constitute a violation of the Act. Furthermore, it is not apparent that there is any meaningful remedy the Tribunal could order even if the conduct complained of constituted a violation of the Act.
Second, the applicants plead that “[a] number of staff” was not notified of the posting of the proxy pay equity plan on November 4, 2015. Some unspecified employees were on a leave of absence, while unspecified others would not have known where to look for the posted plan. As the employer submits, these facts, if proven, would not appear to constitute a violation of the Act. Furthermore, it is not apparent that there is any meaningful remedy the Tribunal could order even if the conduct complained of constituted a violation of the Act.
Third, the applicants plead that not all non-union employees approved of the posted plan, and that the concerns of some employees were not addressed by Southlake to their satisfaction. As the employer submits, these facts do not appear to constitute a violation of the Act, particularly as those employees who were not satisfied with Southlake’s response could have, but did not, file objections to the plan with the Commission within the period contemplated by subsection 15(7) of the Act. Thus the posted plan, without amendments, was deemed approved under subsection 15(8). In any event, it is again not apparent that there is any meaningful remedy the Tribunal could order even if the conduct complained of constituted a violation of the Act.
Fourth, the applicants plead that Southlake did not prove that non-union employees benefitted from a pay equity plan or job evaluation dating back to 1994. The employer agrees with this fact, but points out that it does not claim its obligations under the Act were discharged by any pay equity plan that may have been created by Arbor Living Centers. Rather it asserts that the pay equity plan posted in November 2015 discharges its obligation to achieve pay equity for the non-union employees, and the Review Officer agreed with that assertion. Therefore, there appears to be no violation of the Act as claimed by the applicants in paragraph 4 of Part C of the application. Furthermore, we again observe that it is not apparent that there is any meaningful remedy the Tribunal could order even if the conduct complained of constituted a violation of the Act.
Fifth, the applicants plead that the employer did not respond within the requested time frame (i.e. by January 29, 2016) in a letter dated January 11, 2016 from non-union managers requesting that the posted pay equity plan be reviewed and amended. However that may be, the employer did respond on February 7, 2016, and also posted a notice that day that it would not amend the posted plan. As already noted, the non-union employees could have filed, but did not file, any objection in connection with the employer’s refusal to amend the posted plan to the Pay Equity Commission pursuant to subsection 15(7) of the Act. There appears to be no violation of the Act in respect of the employer not having responded to the non-union managers by January 29, 2016, and no remedy that could rectify it even if we were to find a violation.
Sixth, the applicants claim bias on the part of the law firm that assisted Southlake in the pay equity process and the development of the posted plan. The applicants say the bias arises from the fact that the same law firm has represented Southlake in matters that fall outside the scope of the Act, such as collective bargaining and grievance administration. We fail to see how such an assertion, even if true, could constitute a violation of the Act. The Act is not concerned with whether or not lawyers may be pre-disposed to the views of their clients. What matters is whether or not employers, with or without legal advice, take the necessary steps under the Act to redress systemic gender discrimination in compensation for work performed by employees in female job classes. Accordingly, the assertion that Southlake’s legal counsel is biased appears not to advance the applicant’s position, or is not arguably relevant, and in any event there appears to be no remedy the Tribunal could provide to the applicants even if the assertion of bias is true and provable.
The applicants are provided an opportunity to state why the Tribunal should not dismiss the pleadings in the application described in paragraphs 9 through 15 above for the reasons set out. (In doing so, the applicants should identify the facts which we have described as apparently undisputed in paragraphs 4 through 8 above and with which they disagree, if any, as well as the basis for their disagreement.) They shall have until August 21, 2017 to provide the Tribunal and Southlake with their written submissions in this regard, failing which the pleadings described above will be struck from the application.
There are other matters raised by the employer in its response that relate to the lack of particularity of some of the pleadings made by the applicants. Southlake may pursue these particulars directly with the applicants, and if necessary, seek an order from the Tribunal if the particulars are not provided voluntarily by the applicants.
Dated at Toronto, Ontario this 24th day of July, 2017.
"Patrick Kelly" Patrick Kelly, Vice-Chair