Ontario Secondary School Teachers' Federation v Simcoe Muskoka Catholic District School Board, 2018 CanLII 123879

PAY EQUITY HEARINGS TRIBUNAL

PEHT Case No: 2028-15-PE

Ontario Secondary School Teachers' Federation on behalf of the Educational Assistants Bargaining Unit, Applicant v Simcoe Muskoka Catholic District School Board, Respondent

PEHT Case No: 2029-15-PE

Ontario Secondary School Teachers' Federation on behalf of the Office and Clerical Bargaining Unit, Applicant v Simcoe Muskoka Catholic District School Board, Respondent

BEFORE: Patrick Kelly, Alternate Chair¹

APPEARANCES: Susan Ursel, Emily Elder, Nancianne Speare, Suzanne Conley-Cholak, Rita Golds-Nikolic, Anne Bontje and Alison Wallace appearing for the applicant; Carolyn Kay, Darren Schmidt, Steve Morrow and Andrea Friesen appearing for the respondent

DECISION OF THE TRIBUNAL: December 17, 2018

1. These are applications under section 22 of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”).

2. The applicant (or “OSSTF”) brings these applications on behalf of members of two bargaining units: a bargaining unit which until July 2010 consisted solely of Educational Assistants (“the EA unit”) employed by the respondent (or “the Board”); and a bargaining unit of office and clerical employees (“the O/C unit”) also employed by the Board. These applications were brought following the issue of a Notice of Decision dated March 23, 2015 (in respect of the EA unit) and a Notice of Decision dated March 30, 2015 (applicable to the O/C unit) by the same Review Officer, which effectively found that the Board had not violated the Act.

3. OSSTF also represents a bargaining unit consisting of Plant Maintenance employees (“the PM unit” or “the Plant bargaining unit”).

Overview

4. These applications deal with events beginning about 18 months after the Board posted pay equity plans for each of the EA and O/C bargaining units in June 2000. The posted pay equity plan for the EA unit identified a classification known as Maintenance III in the PM unit as the male job comparator for the Educational Assistants (“the EAs”). Pay equity for the EAs was determined at 92% of the Maintenance III job rate. That same male job class of Maintenance III was identified as the male comparator for the Senior Secretary Secondary and Senior Secretary Elementary female job classes in the posted O/C unit pay equity plan. In addition, the O/C pay equity plan identified Maintenance II, another classification in the PM unit, as the male comparator for the female job classes of Assistant Secretary Elementary and Assistant Secretary Secondary, with pay equity being determined for these two female job classes at 90% of the job rate for the Maintenance II job class.

5. Some of the witnesses who testified in this matter were either signatories to one of the above pay equity plans or aware of the posted pay equity plan applicable to them. None of them were able to explain how the percentages attributed in respect of the Maintenance II and Maintenance III job classes were determined. Nor do the pay equity plans themselves provide any insight into that question.

6. Sometime after both pay equity plans were posted, the structure of the job classifications in the Plant bargaining unit changed as a result of bargaining between OSSTF and the Board. Consequently, the Maintenance III and Maintenance II classifications were replaced by specific trade classifications or classifications defined by job function.

7. The OSSTF and the Board recognized that the re-alignment of the job classifications in the PM unit had a direct impact on the pay equity plans for both the EA unit and the O/C unit. Both pay equity plans now lacked male comparators. The parties began discussing the implications of the lost male comparators in November 2002, met in the early stages of 2003, and formalized an agreement (in 2007) to conduct a thorough pay equity exercise, including: the gathering of job information concerning female job classes in both the EA and O/C units and male job classes in the PM unit; the identification of the gender neutral comparison system (“GNCS”) to be used to evaluate the job classes; and the establishment of two joint job evaluation committees (“JJEC”) to evaluate the applicable female and male job classes and two joint steering committees (“JSC”) to oversee the exercise, and to make key determinations, such as the identification of potential male comparators.

8. The pay equity exercise commenced in March and April 2003 with the solicitation by OSSTF of the EA and O/C bargaining unit members for volunteers to serve on a job content committee for each of the two units, and on the respective joint job evaluation committees and joint steering committees. Each JJEC independently met and conducted job evaluations of the applicable female and male job classes in the period from the spring of 2007 until the spring of 2010. Both JSCs convened in the spring of 2010 to review the female and male job class ratings of the JJEC. Certain questions of each of the JSCs concerning the ratings were presented to the respective JJECs., The EA JJEC did not change the substance of any of its ratings of the job classes, whereas the O/C JJEC did make a few rating changes.

9. The JSC responsible for the EA pay equity process met on May 7, 2010. Discussion turned to consideration of a male comparator. The Board representatives were prepared to agree to the Refrigeration Mechanic as the male comparator if the OSSTF representatives would agree to a 92% threshold of the Refrigeration Mechanic’s job rate. The OSSTF representatives of the JSC were not agreeable. The parties indicated to one another that they wished to consult their respective legal counsel.

10. In the course of a meeting between OSSTF and Board representatives on June 7, 2010, the Board raised for the first time unparticularized concerns about the pay equity process, in addition to other issues, such as job cuts and budget constraints, potentially affecting Educational Assistants in the bargaining unit. The upshot of the meeting is that no formal agreement was reached concerning the outcome of the pay equity exercise for the EAs, and the Board indicated that it had the same, again unparticularized, concerns about the O/C pay equity exercise, thus rendering further meetings of the O/C JSC redundant. Those meetings were therefore cancelled.

11. Subsequently, in the fall of 2010, the Board explained that it had three concerns related to the job evaluation process that had been undertaken by both JJECs, namely a conflict of interest on the part of JJEC members, gender bias and inconsistent use of job content documentation. The Board outlined several options to resolve those concerns, all of which involved some form of a consultant-assisted documentary review, interviewing of job incumbents and engaging in a further job evaluation process, following which the Board and the OSSTF would review the consultant’s findings and negotiate a final result.

12. OSSTF objected to the Board’s position and ultimately filed an application for Review Services with the Pay Equity Commission in November 2011. A Review Officer issued a Notice of Decision on March 23, 2015 regarding the EA unit and a Notice of Decision on March 30, 2015 concerning the O/C unit, finding that the Board had not violated the Act in either case.

13. There are four issues in this application:

i. Is there a changed circumstance that renders the existing pay equity plan no longer appropriate in accordance with sections 7 and 14.1 of the Act?

ii. Did the Board fail to negotiate pay equity in good faith in accordance with s. 14.1 of the Act?

iii. Has the Board failed to maintain pay equity in accordance with section 7 of the Act?

iv. What is the appropriate remedy?

The Evidence

14. The parties filed a brief Agreed Statement of Facts in each matter. These are appended to this decision as Appendix A (in respect of Case No. 2028-15-PE) and Appendix B (in respect of Case No. 2029-15-OE).

15. OSSTF called its evidence first. The following individuals testified for the applicant:

• Patty Coates was the President of the EA unit from 1998. She was a member of the JSC responsible for oversight of the EA unit’s pay equity process.
• Catherine Johnson is the current President of the EA unit. She was a member of the JJEC responsible for evaluating male and female jobs in that unit.
• Suzanne Conley-Cholak has been the President of the O/C unit since September 2001. She was a member of the JSC having oversight of the O/C unit’s pay equity process.
• Anne Bontje is a Senior Secretary in the O/C unit, and was a Guidance Secretary when she was a member of the JSC for the O/C unit.
• Nancianne Speare, retired since 2013, is a former President of the O/C unit who joined the OSSTF Provincial Office in 2002. She became responsible for OSSTF pay equity across Ontario. She served in a facilitative capacity throughout the pay equity process that is the subject of these applications, assisting the JJECs with their work. She also was a member of the JSC for the EA unit.

16. The employer called four witnesses:

• Janice Ramage has served at the Board as an HR Officer and HR Generalist. She was a Board representative on both JJECs.
• Shirley Graham was the Board’s Manager, Employee Relations from June 2004 until June 2016, and a Board representative on both the EA and O/C Joint Steering Committees.
• Enda Soostar was the Board’s Director of Human Resources (later the Associate Superintendent of Human Resources) at the time the parties entered into discussions regarding the pay equity implications of the classification changes in the PM unit, until her employment ended in July 2011. She served as a Board representative member on both the EA the O/C JSCs.
• Steve Morrow was a Principal of the Board throughout most of his time as a Board member of the O/C JJEC (and a Vice Principal for a brief period when he initially served on the EA JJEC before shifting over to the O/C JJEC).

17. Although all the witnesses made valuable contributions in terms of describing the facts and imparting their impressions, the two key witnesses were Ms. Soostar, for the employer and Ms. Speare, for the applicant. Ms. Speare was particularly well situated in the pay equity exercise described in this decision, as she trained all the committees, sat in on most if not all the evaluation sessions of each JJAC, and was a member of the EA JSC. In that latter capacity, she witnessed the breakdown of the process and the impasse that was reached in 2010 during two critical EA JSC meetings and the aftermath.

18. I would also observe that the events to which the witnesses testified were between approximately six, to as far back as, 16 years in the past. Every witness had some degree of difficulty recalling at least some of the specifics of those events, understandably so. However, of all the witnesses’ evidence, Ms. Speare’s notes comprise by far the most comprehensive personal recordings of anyone who was in a position to observe what happened over the course of the relevant period.

The Bargaining Unit Structure at the Board and the Achievement of Pay Equity in 2000

19. OSSTF has represented the O/C unit since 1994, the EA unit since 1995 and the PM unit since 1998. Pay equity plans were negotiated for the female-dominated EA and O/C units in 2000 having regard to male job classes, as they then existed, from the male-dominated PM unit. The EA unit at the time consisted of one classification: Education Assistant.² The O/C unit in 2000 consisted of four classifications: Senior Secretary Elementary; Senior Secretary Secondary; Assistant Secretary Elementary; and Assistant Secretary Secondary.³ The PM unit consisted of a broader range of classifications. Two male job classes from the PM unit – Maintenance II and Maintenance III emerged as male comparators for purposes of the pay equity plans. The EAs were compared to the Maintenance III job class, but at 92% of the job rate for Maintenance III. The two Senior Secretary job classes in the O/C unit were compared to Maintenance III, with no cap on job rate; whereas the two Assistant Secretary job classes were compared to Maintenance II, at 90% of the job rate for Maintenance II. The pay equity plans posted in 2000 resulted in monetary adjustments for female job classes in each of the EA and O/C units.

20. Ms. Soostar became employed by the Board shortly after the negotiation of the 2000 pay equity plans. Ms. Soostar signed the pay equity plans on behalf of the Board, but she had had no role in their negotiation. So, for example, she had no firsthand knowledge as to how the parties arrived at percentage pay thresholds limits for the female job classes vis-a-vis the male job class comparators. The only witness who could recall anything of some specificity about that was Ms. Coates. She recalled that an impasse was reached in the initial pay equity negotiations involving the EAs, which was referred to Review Services at the Pay Equity Commission. In the course of a meeting, Ms. Coates recalled that the Review Officer presented the 92% cap on the Maintenance III job class without any rationale and told the OSSTF representatives that they should take it and be happy. Ms. Ramage also had some vague recollection of the Review Services process, but could not say how the initial pay equity plans were struck, other than that she understood that the percentage caps were negotiated. However, she played no role in any of those pay equity negotiations.

Changes in the classification system in the Plant Maintenance bargaining unit

21. Ms. Soostar was involved as chief spokesperson on behalf of the Board in the first set of collective bargaining applicable to the PM unit. The first collective agreement (from May 1, 2000 until August 31, 2001) produced an hourly wage grid described as Band A, B, C and D. The Maintenance III classification, an amalgam of several positions, though not named expressly in that collective agreement, fell into Band B, the second highest wage band. Maintenance II, also not identified expressly in the collective agreement, fell into the lower paying Band C. Band D consisted of the lowest paid Maintenance I. Following that first collective agreement, the Board and the OSSTF engaged in a job evaluation process with respect to the PM unit job classifications. The renewal collective agreement for the PM unit (September 1, 2001 until August 31, 2003) reflected the changes to the job classification structure (and wage grid) for the maintenance employees resulting from the job evaluation process. For example, in Band B of the wage grid, the parties expressly included the following classifications: Energy Management Systems Technician, Heating Ventilating & Air Conditioning (HVAC), Electrician, and Life Safety Technician. Again, there was no express reference to Maintenance III in Band B or any other band in the wage grid, and it would appear that it was eliminated under the new classification system that emerged in the 2001 – 2003 PM collective agreement. In the next collective agreement for the PM unit (2004 – 2007), the classification of Refrigeration Mechanic joined the other positions in Band B described above. As we shall see later in the decision, the Refrigeration Mechanic became a focal point in the pay equity exercise involving the EA unit.

22. With respect to the Maintenance II classification, the facts concerning its elimination were not illuminated through the testimony of the witnesses or the parties’ pleadings. Like the Maintenance III position, it would appear that Maintenance II was an amalgam of two or possibly more positions. It too was eliminated at some point in the collective bargaining process.

Pay Equity Language in the EA and O/C collective agreements

23. Both the EA and O/C collective agreements spanning the lengthy period covering the events in these matters contain brief provisions governing the Board’s agreement “to maintain a Pay Equity Plan”⁴, “to maintain pay equity”⁵, and “to maintain the approved and agreed to Pay Equity Plan”⁶. In addition, the 2004 – 2007 O/C collective agreement (but not the EA collective agreement for the same period) contains a Letter of Agreement with the subject line “RE: Pay Equity” that provides: “It is understood between the parties that a full review of positions as they pertain to Pay Equity legislation will be undertaken by September 1, 2006 or as mutually agreed between the parties.” In both the subsequent EA and O/C collective agreements operating from 2008 until 2012, there is identical language (Letter of Understanding in the EA collective agreement; Letter of Agreement in the O/C collective agreement) under the heading “Re: Pay Equity” that reads: “It is understood between the parties that a full review of positions as they pertain to Pay Equity legislation will continue as mutually agreed between the parties.”

Preliminary discussions between the Board and OSSTF concerning pay equity implications arising from the “lost” male comparators

24. On November 19, 2001 Ms. Soostar authored an e-mail to Lenore Alexander, at the time the Executive Assistant in charge of pay equity at OSSTF’s Provincial Office, about the pay equity implications arising from the PM unit collective agreement changes. Ms. Soostar observed that the Maintenance III job class, the male comparator for the EAs in the EA unit and two female job classes in the O/C unit, “no longer exists.” She referred to this as “a changed circumstance”. She further observed that resolving the question of a new male comparator could potentially have an impact on the Board’s collective bargaining costs.

25. Ms. Soostar did not want to face unanticipated surprises in the collective bargaining process, hence the need to come to some sort of understanding with OSSTF concerning a male comparator to replace the lost male comparators. In this regard, Ms. Soostar adverted to previous discussions she had had with another OSSTF pay equity representative, Maria Luja, “about having a monetary ratio to deal with Pay Equity.” Ms. Soostar had reason to believe that Ms. Luja might have had a male comparator in mind, and Ms. Soostar was interested in knowing from Ms. Alexander what Ms. Luja may have been thinking about that issue. She expressed the view that reaching agreement on a male comparator would be preferable to engaging in a more laborious process involving job evaluation. Ms. Soostar conveyed her willingness to consider a proposed male comparator, subject to a review by the Board. However, in the absence of agreement concerning the selection of a new male comparator, Ms. Soostar stated that “we need to agree to a process to get to a new male comparator [o]r [a]gree on a process to maintain pay equity by looking at a percentage of wages as I discussed with Maria earlier.”

26. I have described in some detail the key points in Ms. Soostar’s initial correspondence about fixing the pay equity problem caused by the lost male comparators because it helps make sense of what took place nearly nine years later when the parties reached the impasse described briefly in the Overview section above, and more fully below. In her e-mail, it appears that Ms. Soostar saw three distinct possibilities: one, a quickly negotiated agreement on a male comparator, with no conditions; two, a quickly negotiated agreement on a male comparator with a percentage cap on the job rate; or three, a comparatively much more involved process (also to be negotiated) involving job evaluation to arrive at the new male comparator. It is also relatively clear in my view, that, quite sensibly, Ms. Soostar favoured the practicality, expedience and certainty captured by options one and two. However, the parties ultimately settled on the third option, a comprehensive pay equity process that would lead to the identification of an appropriate male comparator for each of the EA and O/C units. That appears to be confirmed in a March 19, 2003 meeting attended by representatives of the Board, the EA and the O/C units and Ms. Speare, where the group discussed a full-fledged pay equity process involving the selection of a new GNCS and the review of all the EA and O/C bargaining unit jobs by job evaluation committees with oversight of steering committees (including a steering committee for the PM unit, which ultimately was not constituted).

27. Apart from engaging in a joint process to create job descriptions for each classification in the EA and O/C units that had been undertaken independently of emerging pay equity issues, not much else of substance appears to have occurred as a result of Ms. Soostar’s November 19, 2001 e-mail to Ms. Alexander, until November 22, 2002, when Ms. Speare, OOSTF’s pay equity specialist, Ms. Coates on behalf of the EA unit, Ms. Conley-Cholak on behalf of the O/C unit and Ms. Soostar met to discuss primarily pay equity issues, including discussion on the need for terms of reference to guide the pay equity process, the use of job descriptions, the possibility of agreeing on a male comparator, the introduction of a new job class in the O/C unit, and so forth. The participants agreed to meet again in a joint session in January 2003, with a view to working out an agreed process towards the identification of a male comparator.

Developments in 2003

28. There is no record of a January 2003 meeting, but the same participants (plus Janice Ramage from Human Resources) convened on March 19, 2003. According to Ms. Speare’s notes of that meeting, the parties discussed, among other things:

• recently added accounting, attendance and purchasing duties for O/C unit members, and the recent introduction of a new position – Guidance Secretary – in the O/C unit;
• the emergence in the foreseeable future of new job responsibilities for the EAs following the recent development of an EA job description jointly by the Board and the OSSTF;
• the gender dominance of the Maintenance Clerk position in the PM unit⁷;
• the need to come to agreement on a gender neutral comparison system;
• and the issue of “release time” for bargaining unit individuals who participate in what were by then conceived to be evaluation and steering committees for each of the EA and O/C units.⁸

29. Ms. Conley-Cholak’s notes of this meeting largely overlap with those of Ms. Speare, but she made a notation about “EA’s 92% of maintenance”, whereas there is no mention of this in Ms. Speare’s notes. Ms. Conley-Cholak also recorded a comment attributed to Ms. Soostar in which she said something about there being no reason for the PM unit to get itself in a “snit” about the male comparator. This too did not make it into Ms. Speare’s notes.

30. Very shortly after the March 19, 2003 meeting, the EA and O/C Presidents issued similar memoranda to their bargaining unit members, advising them of the commencement of a pay equity maintenance process, and seeking volunteers to join one of three committees: a job content committee to develop job analysis questionnaires (“JAQs”) for each job class in the EA and O/C units; a job evaluation committee; and a steering committee, in Ms. Cholak’s words, to “complete the pay equity review following evaluation up to and including the final agreement with the Board.”

31. All the committees were eventually struck and trained, principally by Ms. Speare. (No issue arises in these matters about the adequacy or relevance of the training, and I do not therefore propose to describe it.) The job content committees consisted only of bargaining unit employees from the EA unit and the O/C unit respectively. The other two committees – the JJECs and the JSCs - were joint, consisting of equal numbers of representatives chosen by OSSTF and representatives chosen by the Board.

32. The job content committees developed the JAQs for their respective bargaining units. In the case of the EAs, a single, consolidated JAQ emerged from the work of several EAs who authored their own individual JAQs. The consolidated JAQs for the O/C female job classes were fashioned in much the same way. The consolidated EA JAQ was initialed by Ms. Coates on behalf of the OSSTF and Shirley Graham from Human Resources.

33. I pause here to make a couple of observations. First, at this stage in 2003, there was no written agreement or terms of reference with respect to how the pay equity exercise was to proceed. The parties simply followed the understanding they had reached either in their meetings or communications with one another. They would formalize the process only much later, in early 2007, when they drafted (but did not sign) terms of reference outlining the mandates of the JJECs and the JSCs.

34. Secondly, neither the Board nor the OSSTF appear to have had any concern as the process rolled out informally that the PM unit was not actively involved in the new pay equity process to the extent the other two bargaining units were. No one at the time in the PM unit was asked to develop their own JAQs, for example. Their participation was not sought to sit on a joint job evaluation committee or one of the joint steering committees. At that stage in 2003, the parties appear to have been satisfied that the job content for the PM unit job classes was sufficiently captured by “job context sheets” prepared by the Board to document the PM unit classifications. Several years later, they changed their minds, and agreed to the completion of JAQs for the maintenance positions.

Slow progress 2004 to 2006

35. By the end of April 2004, the JECs and the JJECs had still not been constituted. Nor had the GNCS been finalized. The parties in the EA pay equity process were talking about confining the male comparators to job classes in the PM unit⁹, and about prohibiting JJEC committee members from evaluating their own jobs¹⁰. Also, the Board was considering Ms. Speare’s suggestion to use job analysis questionnaires rather than job context sheets for the male comparators.¹¹ But apart from that, the process was not moving quickly due mainly to other commitments of Ms. Soostar and Ms. Speare. In fact, it would appear that nothing of substance occurred on the pay equity front in the workplace from the fall of 2004 until the fall of 2006 when Ms. Soostar contacted Ms. Speare on November 24, 2006 and proposed the following:

• using the OSSTF’s GNCS to evaluate all female job classes and male comparators;
• that the female job incumbents on the respective JJECs could evaluate their own jobs, but if there were problems with that arrangement, each JJEC would evaluate the female job classes in their counterpart bargaining units; and
• that, in respect of the potential male comparators in the PM unit, the ratings arrived at for those job classes would have no bearing whatsoever on the wage structure and prior internal evaluations done in respect of the PM unit.

36. Finally, Ms. Soostar requested in her letter that Ms. Speare confirm OSSTF’s agreement to enter into a “memorandum of understanding”.

Key Developments in early 2007

37. The next correspondence was Ms. Speare’s e-mail to Ms. Soostar of January 18, 2007, setting out a proposed schedule of March dates for the training of all JSC and JJEC committee members, and the commencement of job evaluations by each JJEC. Ultimately dates were scheduled in February (for the training of the members of the two JSCs) and March (for the training of the JJECs, and the commencement of evaluations).

38. In the February 2007 JSC training meetings, a detailed outline of the pay equity project in separate, albeit identical, Terms of Reference was presented to each member of the respective JSCs (but possibly not to the JJEC members). Although there was a separate Terms of Reference for each of the EA and O/C units, there was little, if any, difference in the substance of the provisions apart from the individuals named to populate the respective JJECs and JSCs.¹² It is useful here to describe the key provisions of the Terms of Reference, both to glean what the parties intended to achieve and what they in fact did achieve at the point that they reached an impasse in 2010.

39. The Terms of Reference open with an untitled introduction or preamble that discloses the following:

• the parties acknowledged that they were embarked on “re-negotiating a Pay Equity Plan…due to a change in circumstance”;
• the Terms of Reference were to be followed in the course of the re-negotiation; and
• the parties agreed, “without prejudice” to negotiate a Pay Equity Plan as required by section 14 of the Act (setting out the rules by which a pay equity plan is to be effected for the first time for each bargaining unit in establishments with bargaining units and non-union employees) and to do so in good faith.

40. The Terms of Reference next go on to set out the formation and composition of the Joint Steering Committee and the Joint Job Evaluation Committee “for the process of negotiating a Pay Equity Plan”. The JSCs were composed of equal numbers of Board and OSSTF representatives, including Ms. Soostar for the Board and Ms. Speare for the OSSTF. The JSCs had been in existence, and had accomplished a significant number of tasks under their mandate (including the determination of job classes, their gender predominance with perhaps one exception concerning the Maintenance Clerk in the PM unit, and the method of collecting job content information) well before the Terms of Reference were finalized. Among some of the other significant tasks of the JSC set out in the Terms of Reference are:

• determination of job content when “in dispute”;
• completion of a rank order analysis for all evaluated job classes;
• determination of the male comparators;
• determination of the “banding” of evaluated job classes;
• determination of the job rates of rated job classes in compliance with the Act; and
• determination of the amounts and implementation dates “for any required retroactive adjustments and go-forward job rates.

41. The Terms of Reference set out an entirely separate role of the JJEC, to evaluate all female job classes and the “potential male comparators” as determined by the JSC. Again, the structure of the JJEC, like the JSC, was bi-partisan, consisting of equal numbers of employer and union representatives, none of whom were members of the JSC. The Terms of Reference envisioned the JJEC being chaired by two Co-Facilitators, representative of each side. In the EA Terms of Reference Janice Ramage from Human Resources is named as one of the Co-Facilitators. As it turned out, however, both the EA and the O/C JJECs were never co-facilitated in any real sense. Ms. Speare, on behalf of OSSTF, was the lone facilitator in both JJECs. She alone conducted the JJEC sessions, whereas Ms. Ramage acted as a member of both the EA and O/C JJECs and brought and collected the materials used by the JJECs at each of their evaluation sessions.

42. Among the tasks assigned to the Co-Facilitators (in fact, only Ms. Speare as it turned out) under the Terms of Reference are:

• Maintain the agreed to documentation in the job evaluation process, including recording the JJEC evaluation decisions on the appropriate forms;
• Track the resolution of issues arising in the JJEC sessions;
• Ensure the resolution of outstanding items; and
• Prepare factor and rank order analysis documentation;

43. The JJEC itself is tasked with, among other things:

• Evaluation of the sub-factor level for all job classes;
• Completion of factor analysis of job classes after all job classes have been evaluated
• Notifying the JSC regarding “matters of conflict and/or deviation from evaluation practices set out within these Terms of Reference and/or those practices provided in the Joint Job Evaluation Committee training.”

44. Aside from describing the roles of the two committees and the Co-Facilitators, the Terms of Reference also cover in clause 5.1 the collection of job data, and in that regard stipulate that, in making use of the OSSTF Job Evaluation System (“the System”) to evaluate the job classes, the System shall include a questionnaire, rating tool, supervisor review, factor and sub-factor definitions, scoring system and weightings, and job descriptions and “context sheets [i.e., job context sheets] as provided by the Board”. In clause 5.2 of the Terms of Reference, the parties acknowledged that the job content information referred to in clause 5.1 “has been shared, reviewed and agreed upon by the parties.”¹³

45. Section 6 of the Terms of Reference deals with job evaluation ratings, and it is significant in terms of describing what the parties conceived to be the appropriate interaction between the JJEC and the JSC should problems arise in the JJEC reaching agreement on any particular rating. Clause 6.1 says that “[f]inal job class ratings shall be achieved through consensus” among the JJEC members, and that “[t]his means all members must consent to the level assignment for each sub-factor.” Article 6.2 goes on to set out what happens in the event of a lack of consensus. In that event, the parties envisioned that the JJEC would take a number of steps separately or in combination, including setting aside the disputed rating and coming back later to review it, and if that later review proves ineffective in resolving the matter, seeking the intervention of the JSC “to see if consensus can be reached”; or in the further alternative, call upon a Review Officer from the Pay Equity Commission “to assist in the determination of the rating.” Significantly, the Terms of Reference did not contemplate that the JSC would itself decide the disputed rating (or, for that matter, substitute a rating reached by the JJEC with one reached by the JSC).

46. Section 8 of the EA Terms of Reference¹⁴ contemplates that the parties “shall negotiate the final Pay Equity Plan, and following that, “recommend approval of the Plan to their respective parties.” Needless to say, the parties did not successfully negotiate the new PEP, and, accordingly, no process of ratification was engaged.¹⁵

47. Finally, Section 10.1 of the EA Terms of Reference¹⁶ states:

10.1 In the event that the Parties cannot agree on the process and/or Plan, in whole or in part, either Party may request assistance from the Review Officer as provided for in the Pay Equity Act.

48. I pause here to make several observations about the Terms of Reference. First of all, while the JSC had a much broader mandate than the JJEC, and a kind of oversight role over the pay equity exercise that the parties were engaged in, the Terms of Reference strive to maintain an independence as between the two committees. The JJEC was to attempt to reach consensus on job ratings, and to take internal measures to break any impasse. Although the JJEC could look to the JSC to help it reach consensus, the JSC was not an appeal body for any evaluation disputes that might arise at the JJEC level. Nor did the JSC have a mandate to change the JJEC’s ratings. Finally, the JJEC was authorized to bring to the JSC matters of conflict and deviation from evaluations.

49. Secondly, the parties did not always comply strictly with every provision of the Terms of Reference. For example, the work of the JJECs was not facilitated by two Co-facilitators. Ms. Speare fulfilled that function. Nor was the training of the JJEC committee members carried out jointly by an OSSTF and Board representative. Again, although Ms. Soostar, as the Board’s representative, could have participated actively in the training, she deferred to Ms. Speare to perform that function. The main point, however, is that neither party complained of any lack of compliance with the Terms of Reference. Indeed, the parties did not formalize the conditions for their pay equity exercise in the form of Terms of Reference for more than five years after acknowledging that they had to do something (and did take steps) to address the changes arising from the “lost” male comparators from the initial pay equity plans.

50. Finally, due to the 2010 impasse between the parties, the Terms of Reference were never fulfilled in their entirety. No new PEP was reached, no ratification took place, no pay equity adjustments (had any been warranted) were made. And that remains the case as of the present day.

51. In addition to receiving and reviewing the Terms of Reference, the JSCs came to agreement on the use of the OSSTF’s GNCS. That GNCS consisted of the four statutory factors (skill, effort, responsibility and working conditions) and a total of 13 subfactors (six under the heading of skill; three under effort, and two each under responsibility and working conditions), each of which contained a series of levels and explanations used in rating jobs. The weightings and points per level in the GNCS were not apparent on the face of the rating tool, and would not have been known to the members of either JJEC.

52. Early on in the evaluation process in 2007, the JJECs expressed concern regarding the job context sheets describing the job classes in the PM unit. The JJEC members felt the job context sheets were inadequate to the purpose due to their generic content. As a result, Ms. Speare obtained Ms. Soostar’s consent to have the incumbents in PM unit jobs prepare job analysis questionnaires, with supervisory oversight, and for those JAQs to be used, in addition to the job context sheets, by the EA JJEC and the O/C JJEC. Ms. Speare trained the PM unit incumbents in filling out their JAQs. The JAQs for the PM unit jobs were completed, reviewed by the applicable supervisors, vetted by Ms. Soostar, and ready for use by the JJECs in the fall of 2007.

The JJECs: 2007 to 2010

53. Over the period from early 2007 until the spring of 2010, the two JJECs met and evaluated the female and male job classes, with Ms. Speare in the facilitator’s role.¹⁷ Progress was slow, mostly due to difficulties in scheduling meetings on dates that the Board representative members of the JJEC had available. There was also a period of extensive collective bargaining that drew Ms. Soostar and Ms. Speare away from the pay equity exercise.

54. The JJECs used a combination of JAQs and job descriptions to evaluate the female job classes, and a combination of JAQs, job descriptions and job context sheets to evaluate the male job classes. Because the EA JJEC found the job context sheets for the male job classes to be inadequate or simply too generic and repetitive, JAQs for those job classes were prepared by male job incumbents and reviewed by a supervisor. There was some unchallenged evidence from Ms. Johnson that, as a result of information in the JAQ for the male job class of Lead Hand, the EA JJEC improved its initial rating (based on the job context sheet) for that position in the education subfactor.

55. Sometimes the EA JJEC members on both sides offered their personal observations about a particular job class. The Board members of the EA JJEC were more likely than the OSSTF members to offer observations about the duties or qualifications of the male job classes, whereas it would appear that the OSSTF members would more likely express opinions about the EA position, but there was overlap as well.

56. Ms. Speare cautioned the JJEC members to be careful in that regard, and indeed, the Terms of Reference did not sanction the use of such undocumented information by the JJECs. However, the JAQs for the male job classes were not always entirely clear¹⁸, and in those circumstances some JJEC members tried to make sense of things from their own experience. Ms. Johnson testified that the JJEC members on both sides offered their views from time to time, or deferred to the supervisor’s written comments on the male job class JAQs where they were confused by the information recorded by the incumbent, and that this did not appear to cause any concern by or objections from the JJEC members. Not surprisingly, when Ms. Johnson was pressed in cross-examination about how the EA JJEC dealt specifically with certain ambiguous notations and marks on any particular JAQ, she could not recall those specifics. All she could venture was that the JJEC typically resorted to various means of obtaining information when the JAQs were less than entirely helpful.

57. Sometimes Ms. Speare directed questions posed by the JJECs (to which the answers were not apparent in the job content information) to Ms. Soostar and the head of the Plant Maintenance Department, Steve Adams. Ms. Ramage once called Mr. Adams regarding the meaning of an abbreviation in one of the job content documents pertaining to a male job class.

58. In their deliberations, both JJECs strove for consensus on the ratings of the GNCS subfactors. That is, though individual members sometimes disagreed initially with any particular rating by others on the JJEC, typically they all eventually arrived at an agreed group rating on every subfactor for every factor in every job class. Ms. Ramage, a Board representative on both JJECs, and Mr. Morrow, a Board representative for a brief period on the EA JJEC and for the most part on the O/C JJEC, testified to a sense of frustration with the very lengthy process of the JJECs, and not having a sufficient grasp of the male job classes. Mr. Morrow testified that, with respect to the female job classes in the O/C unit, the female members of the JJEC felt no compunction in speaking about their personal experiences regarding, for example, the mental demands and work pressure of their positions. Mr. Morrow said he did not want to undervalue the rating of these aspects of the job in light of the verbal information that he was hearing, but he also expressed discomfort in his testimony that he did not have the same depth of information concerning the male job classes. He conceded, however, that there was also discussion among the JJEC members, including himself, about their observations and/or knowledge of the male job classes.

59. In examination in chief, Mr. Morrow said that several unspecified members of one or both of the JJECs on which he was a member requested that incumbents in the male job classes attend the JJEC to provide further information. He said that when that came up, the JJECs were told by Ms. Speare to remain focused on the written materials. He said that she also undertook to forward their requests for the attendance of male incumbents to the appropriate persons, but that at no time did a male incumbent ever attend a JJEC meeting. That evidence was countered by Ms. Johnson, one of the OSSTF members of the EA JJEC, and by Ms. Speare. Ms. Johnson testified that in the EA JJEC meetings, though there were some comments that “it would be nice” to pose questions about job content to those who had direct knowledge (an observation corroborated in the evidence of Ms. Ramage), no one insisted that such persons be called to attend a JJEC meeting. Ms. Speare concurred with that in her testimony.

60. Ms. Ramage, who sat on both JJECs as a Board representative, failed to corroborate Mr. Morrow’s testimony. She could not recall any request of a JJEC member seeking the attendance of male incumbents to clarify any aspect of their work. She did observe however that the JJECs were less equipped to understand the male job classes. She did say that Ms. Speare offered to take any questions regarding clarification of job content to a supervisor, if that is what the JJECs requested.

61. Ms. Ramage and Mr. Morrow gave the impression in their testimony that they occasionally agreed to ratings, especially of the female job classes, because they did not want to offend the OSSTF representatives on the JJECs. Mr. Morrow, in particular (and Ms. Ramage to a lesser extent), said he thought the JSC would address JJEC ratings, and that because of that expected oversight by the JSC, as well as his tendency to defer to the workers on the JJEC, he did not challenge the ratings more vigorously. Ms. Ramage testified that she was free “to a point” to voice her views concerning her ratings when they did not align with others, but that in the interests of time and maintaining cordial relations, she was inclined not to push it too far. Neither Mr. Morrow nor Ms. Ramage testified about any particular rating with which they vehemently disagreed or felt particularly uncomfortable, although Ms. Ramage was surprised to learn that an EA might use power tools. (As it turned out, an EA might do so when assisting a student in shop class, and Ms. Ramage ultimately accepted that clarification.) Nor did they point to the content of a particular JAQ that they found troublesome or incomprehensible. In the end, they heeded Ms. Speare’s advice to deal as best they could with the documents before them. Ms. Ramage confirmed that Ms. Speare always tried to steer the JJECs to the job class at hand, to give precedence to the written documentation, and to be cautious recounting their own personal experience when discussing job content. Ms. Ramage testified that the final ratings reached by each JJEC reflected the consensus of all members. Mr. Morrow also conceded that all the ratings were reached by consensus ultimately.

62. Ms. Ramage occasionally reported certain concerns about the JJECs to Ms. Soostar. According to Ms. Ramage, she reported frustration in the difficulty she experienced trying to schedule JJEC meetings that all JJEC members (mainly the Principals) could attend. She also reported to Ms. Soostar the problems the JJECs were having evaluating the male job classes with only the job context sheets, which led to the decision to have the male incumbents from the PM unit fill out JAQs. She may have told Ms. Soostar that the JAQs prepared by the male incumbents were difficult to deal with. Finally, she advised Ms. Soostar of an incident in the early stages of the EA JJEQ’s evaluation process in which one of the OSSTF representatives on the committee became unduly confrontational, and was soon replaced by someone else. Ms. Ramage had no concern about individuals on the JJECs voicing personal observations about the duties and tasks performed by other job classes, and therefore saw no need to inform Ms. Soostar about that. Moreover, as she did not recall any express request by the JJEC members for Ms. Speare to arrange an interview with a male job class incumbent, there seems little doubt that she did not raise a concern in that regard with Ms. Soostar.

63. Ms. Ramage was not asked in the course of her testimony whether she reported any concerns about the JJECs to Shirley Graham, the Manager of Employee Relations for the Board and a member of both JSCs. However, Ms. Graham testified that Ms. Ramage did so frequently. According to Ms. Graham, Ms. Ramage’s greatest frustration concerned the length of time that it was taking the JJECs to complete their work, the lengthy periods of time between JJEC meetings and individual members of the JJECs “coming and going from meetings”. She also expressed concern that the views of Board members on the JJECs were not being considered by the OSSTF members, and that there was a basic lack of experience on the JJECs with respect to job evaluation. Ms. Graham says she advised Ms. Ramage to speak to Ms. Soostar.

64. In all, the EA JJEC rated the EA female job class and five male job classes - Electrician, Energy Management Coordinator, HVAC Mechanic, Lead Hand (also referred to as Building Maintenance Lead Hand) and Refrigeration Mechanic. The O/C JJEC rated the same five male jobs, and the five female job classes in the O/C unit.

65. There was a divergence in the testimony of witnesses about whether, during the evaluations by the JJECs, there was a colour-coded copy of each JAQ to which the JJEC members could refer if they so desired.¹⁹ Each JJEC member had a black and white photocopy of all the JAQs for their own personal reference. The colour-coded originals were somewhat more reliable because the coded colours distinguished between the writing of the incumbent and the comments of the supervisor. There was no direct evidence from any witness that a particular colour coded JAQ was ever referred to by Ms. Speare in response to a query from a JJEC member. In my view, it is not necessary to resolve whether or not there were colour coded JAQs available for the JJECs. Certainly, the case does not turn on that issue.

Towards impasse in 2010

66. The EA JSC met on April 9, 2010 to review a Rank Order Analysis (“ROA”) prepared by Ms. Speare, setting out the ratings of all the job classes, but without any point totals. Some JSC members wanted clarification from the EA JJEC concerning certain ratings under the following subfactors: responsibility for others, responsibility for resources, work pressure, health and safety, and physical environment. Another concern was the use of a partial point score (2.5 rather than a round number of 2 or 3) for a male job class. At one point, someone raised a concern that the scores of the male job classes were based on job context sheets, but Ms. Speare reminded the JSC that that was not the case, that the male job classes were initially evaluated using job context sheets, but that when the JJECs complained that this was not particularly helpful information, a decision was taken to document the male job classes using the same job content tool as was used for the female job classes, namely the JAQs.

67. Ms. Speare took the concerns of the EA JSC to a meeting of the EA JJEC. The EA JJEC considered those concerns, but maintained their ratings without any changes.

68. The EA JSC reconvened on May 7, 2010. Ms. Speare told the JSC of the response of the EA JJEC to their inquiries (that the JJEC stood by its initial ratings) and provided the members with an updated ROA, this time with the point scores. To the extent that any Board members of the JSC may have been unsatisfied with the response of the JJEC to the concerns of the JSC (both Ms. Soostar and Ms. Graham said they were not satisfied), there was no clear evidence that any one of them expressly said so to Ms. Speare. In fact, Ms. Graham testified that she probably kept her views to herself, and that if the Board members of the JSC said anything about their dissatisfaction with the EA JJEC’s ratings, that was during a private caucus of the Board representatives. Certainly, none of the Board representatives insisted that their concerns be sent back a second time to the JJEC for further consideration.

69. Ms. Coates recalled in her testimony that the JSC, seeing the half-point scoring difference between the EA job class and that of the Refrigeration Mechanic, agreed that the Refrigeration Mechanic was to be the male comparator for the EAs. She also recalled that banding scenarios were discussed at the meeting, but could not explain why it would have been necessary to do so if agreement had been reached on the male comparator for the EAs. Both Ms. Soostar and Ms. Graham recalled in their evidence that they did not communicate agreement on the Refrigeration Mechanic as the male comparator, and that a banding scenario was discussed as an exploratory exercise, but no agreement was reached on that either.

70. Ms. Coates further recalled that during the meeting, Ms. Soostar and Ms. Graham on behalf of the Board, called Ms. Coates and Ms. Speare aside, at which point Ms. Soostar informed them that there was a cost issue regarding the Refrigeration Mechanic, that the Board had no money, and that the Board was prepared to agree to a comparison of the EAs to the Refrigeration Mechanic at 92% of the Refrigeration Mechanic’s job rate, the same threshold that had been utilized in the original EA pay equity plan for the Maintenance III job class. Effectively, such a result would garner no pay equity adjustment for the EAs.

71. Ms. Speare’s recollection of the discussion was similar to that of Ms. Coates. According to Ms. Speare, Ms. Soostar acknowledged that the Refrigeration Mechanic was the appropriate comparator. However, Ms. Soostar explained that, given that the Board had maintained pay equity over the years by maintaining the 92% threshold applicable to the old Maintenance III classification, a similar 92% threshold applied to the Refrigeration Mechanic would yield no pay equity adjustment for the EAs. Ms. Speare recalled that Ms. Soostar said the Board was not prepared to pay a pay equity adjustment, that there would be no increase in EAs’ pay, and that she wanted to negotiate with Ms. Coates and Ms. Speare.

72. For her part, Ms. Soostar’s testimony was not substantially at odds with that of Ms. Coates and Ms. Speare, other than that she was adamant that she did not expressly agree that the Refrigerator Mechanic would be the male comparator. In cross-examination, she did not directly answer whether or not she told Ms. Speare and Ms. Coates that the Board was not prepared to pay a pay equity adjustment, but she did testify that she made clear to them that, with the application of a 92% threshold to the Refrigerator Mechanic – should it be the male comparator for the EAs – there would be no pay equity adjustment required.

73. Ms. Coates and Ms. Speare were opposed to what they believed Ms. Soostar was suggesting. Ms. Coates said she was disappointed and deflated, and that Ms. Soostar’s suggestion of a 92% threshold was not what had been agreed in the Terms of Reference. They told Ms. Soostar they would not accept such a result. Ms. Speare testified that she told Ms. Soostar that the OSSTF would seek legal advice about Ms. Soostar’s suggestion to negotiate.

74. For her part, Ms. Graham testified in chief that during the meeting of the EA JSC as a whole, the Board did not indicate that it agreed that the Refrigerator Mechanic was the appropriate male comparator. In cross-examination, however, she conceded the possibility that there was agreement reached regarding the Refrigerator Mechanic but she could not recall. She did not actually participate in the side-bar discussion with Ms. Coates, Ms. Speare and Ms. Soostar. She recalled that it took place, but she did not participate or overhear what was said. Ms. Speare and Ms. Coates then briefed the remaining OSSTF members of the EA JSC in private caucus concerning their interaction with Ms. Soostar and Ms. Graham. The meeting of all the present members of the JSC then reconvened, at which point Ms. Soostar advised the OSSTF representatives that the Board would seek legal advice about what to do next.

75. Subsequently, Ms. Soostar, Ms. Speare and Ms. Coates (on behalf of the EA unit) met on June 7, 2010. It is not clear whether this was a meeting of the EA JSC or a truncated version of the EA JSC, or just a meeting to discuss issues including pay equity issues. Ms. Speare’s notes of the meeting (which indicate that it was a meeting to discuss EA pay equity issues), and her uncontradicted testimony, reveal that Ms. Soostar informed the OSSTF representatives that the Board had an unfunded liability, a deficit of $1.4 million and, and was contemplating EA staff cutbacks. She also disclosed unspecified concerns with certain processes involved in the pay equity evaluations by the EA JJEC. However, Ms. Soostar said that she was not prepared to discuss those concerns in detail until such time as she had an opportunity to speak to legal counsel.

76. In the course of her examination in chief, Ms. Soostar was asked if she had previously identified the nature of her process concerns. She replied, “I believe I did”. She “believed” she previously raised the issue of JJEC members evaluating their own jobs with Ms. Speare. Ms. Speare testified, however, that she was confused by Ms. Soostar’s claim regarding process concerns, as she had never previously been informed of any such concerns. She did not address Ms. Soostar on the cutbacks, the Board’s deficit or its unfunded liability, as she did not consider these appropriate topics for pay equity discussions. However, Ms. Speare did ask if there was any sense in going ahead with a scheduled meeting of the O/C JSC if the Board was going to maintain the same position. It was not disputed that Ms. Soostar indicated that the Board was advancing the same position in the O/C pay equity process. Accordingly, the O/C JSC did not meet again after this point.

77. Following the conclusion of the meeting, Ms. Speare accompanied Ms. Soostar to her office. Once there, according to Ms. Speare, Ms. Soostar revealed that she would face termination of employment if she agreed to any adjustment in wages as a result of the pay equity process. Ms. Speare testified that Ms. Soostar did not make the comment lightly. Ms. Speare said she felt badly for Ms. Soostar if what she claimed was true. However, Ms. Speare also said that that was out of her hands. Ms. Soostar, on the other hand, was never questioned by either counsel regarding this private conversation. Accordingly, Ms. Speare’s account is undisputed, and I find as fact that it occurred.

78. The interaction between the O/C JJEC and JSC played out in a similar manner to that of the EAs with respect to the ratings of the JJEC. Like she did with the EA JSC, Ms. Speare prepared a Rank Order Analysis without points for the O/C JSC, which in turn raised a number of questions about the rankings that it asked Ms. Speare to take back to the JJEC. She did so. Unlike the EA JJEC, however, the O/C JJEC made a number of rating changes, most of them involving increased ratings for female job classes, and one of which involved an increased rating for a male job class.²⁰ Those changed results were reported to the O/C JSC for its further review on June 4, 2010.

79. The evidence concerning how the June 4, 2010 meeting unfolded and concluded is far from clear. There are no surviving notes that might shed light on that. The rankings as they then stood had the two Senior Secretary job classes at 699 total points, followed by the Energy Management Systems Coordinator at 695.5 points, the HVAC Technician at 673.5 points, the Refrigeration Mechanic at 664.5 points, the Electrician at 638.5 points, the Assistant Secretary – Student Services at 637.5 points, the Lead Hand at 621 points, and the Assistant Secretary Secondary and the Assistant Secretary Elementary each at 612 points.

80. Ms. Conley-Cholak, one of the attendees at the meeting, thought that there was discussion concerning male job classes/comparators and banding scenarios, but she could recall no specifics. Ms. Speare believes she proposed some banding possibilities, but also could not recall any specifics or how the Board members of the JSC responded. Ms. Graham recalled there was some discussion about the JJEC ratings and banding scenarios, but no agreement on anything. Ms. Soostar suggested in her testimony that, while the Board members of the JSC may not have expressly rejected the ratings outright, she remained perplexed by the rating results and let that be known. She testified she did not understand why there was such a difference between what she described as the “bookend” ratings for Senior Secretaries and Assistant Secretaries. Whatever Ms. Soostar may have expressed in terms of the ratings, she certainly did not convey to the O/C JSC at the June 4, 2010 meeting any of the process concerns that she would later describe in the late fall of 2010.

81. The O/C JSC was to have met again sometime after June 4, 2010, but that scheduled meeting was cancelled given the impasse in the EA process on June 7, 2010.

82. No further meetings about pay equity for the EA or the O/C units took place in the remainder of 2010. On October 21, 2010 Ms. Soostar wrote to Ms. Speare advising of the Board’s view of both the EA and O/C pay equity exercises. Ms. Soostar wrote that “the results of this process pertaining to the ranking of positions that were evaluated are extremely problematic” and that the Board could not agree to the results because they “arise from a process of job evaluation that is fundamentally flawed due to a number of procedural concerns including but not limited to

• a conflict of interest on the part of evaluation committee members
• gender bias
• unequal sources used for purposes of comparison and decision making.”

83. Ms. Soostar went on to propose that the job evaluations of all the female and male job classes be “redone using processes and tools that are neutral and objective.” Ms. Soostar described the following three options for consideration by OSSTF:

Option 1:

• The parties agree to a single neutral third party consultant to review materials, interview incumbents and do a job evaluation process for designated bargaining unit positions, including all maintenance bargaining unit classifications for purpose of comparison.
• Once completed, the results would be provided to each of the parties respectively, who would then meet to review the findings and negotiate a mutually agreeable result.

Option 2:

• The parties agree to select their own external consultants (one selected by OSSTF and one selected [sic] the Board) to review materials, interview incumbents and do a job evaluation process for designated bargaining unit positions, including all maintenance bargaining unit classifications for purposes of comparison.
• Once completed, the results would be provided to each of the parties respectively, who would then meet to review the findings and negotiate a mutually agreeable result.

Option 3:

• The parties agree to select their own external consultants (one selected by OSSTF and one selected by the Board) and include a party representative (one from OSSTF and one from the Board) to review materials, interview incumbents and do a job evaluation process for designated bargaining unit positions, including all maintenance bargaining unit classifications for purposes of comparison.
• Once completed, the results would be provided to each of the parties respectively, who would then meet to review the findings and negotiate a mutually agreeable result.

84. Ms. Soostar added that, regardless of which option might be chosen, she proposed that no job incumbent would be permitted to evaluate his or her own position.

85. Ms. Speare, understandably in my view, was confused by Ms. Soostar’s wholly unparticularized “procedural concerns” as set out in the bulleted sections in paragraph 83 above. Ms. Speare asked in writing for clarification. Ultimately Ms. Soostar responded in a letter dated November 26, 2018 wherein she offered the following clarification of the Board’s three procedural concerns:

• conflict of interest on the part of evaluation committee members o job evaluation committee members (workers) evaluated their own jobs
• gender bias o no representative members from the male comparator maintenance bargaining unit were present, involved with or included when jobs from that bargaining unit were evaluated by the job evaluation committee
• unequal sources used for purposes of comparison and decision making o PDQ’s [JAQs] and job context sheets were not used consistently o male comparators were not interviewed for specific positions during the job evaluation committee process o female comparators participated in the job evaluation process by evaluating their own jobs or were present and able to speak to and advocate for their own positions during the job evaluation committee process, further complicating the conflict of interest and gender bias concerns as noted above

86. The parties arranged to meet on January 7, 2011 to discuss the Board’s concerns and remedial proposals. At the outset of the meeting, Ms. Soostar reiterated that the Board could not accept the rating results by either JJEC, that those results were “out of whack”. She then turned the meeting over to Ms. Speare to respond to the options for resolution proposed by the Board. Ms. Speare endeavored to rebut the Board’s procedural concerns, and advised that OSSTF was not agreeable to any of the options proposed by the Board. Ms. Speare indicated that the OSSTF would, instead, request the intervention of Review Services of the Pay Equity Commission.

87. The OSSTF filed applications with Review Services on November 22, 2011. As indicated earlier, on March 23 and March 30, 2015, a Review Officer issued a Notice of Decision for each bargaining unit finding that there had been no violations of the Act.

The Positions of the Parties

OSSTF

88. OSSTF’s argument, reduced to its key points, can be summarized as follows. The parties voluntarily entered into a joint, consensual pay equity process, governed by Terms of Reference to which they complied, which resulted in the determination of a new male comparator. But once the cost repercussions of that determination were assessed by the Board, it walked away from its obligations under the Terms of Reference, and offered an ex post facto rationalization (in the form of inauthentic process concerns) for having done so. The actions of the Board constitute a failure to negotiate in good faith an amended pay equity plan arising out of changed circumstances as set out in section 14.1 of the Act. In addition, they constitute a failure to maintain pay equity as required under subsection 7(1) of the Act.

89. The OSSTF seeks a range of remedies in each matter, described in detail at paragraphs 136 and 137 below,

90. In support of its position in these matters, the OSSTF referred the Tribunal to the following authorities:

• Group of Employees v. Ontario Public Services Employees Union, [1993] O.P.E.D. No. 47
• Ottawa Heart Institute, Ottawa Hospital and CUPE Local 4000, 2004 CanLII 60148 (ON PEHT)
• O.P.S.E.U. v. Cybermedix Health Services Ltd., [1989] O.P.E.D. No. 4
• Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354
• Ontario Nurses’ Association, and Regional Municipality of Haldimand-Norfolk, [1991] O.P.E.D. No. 52
• Teamsters Local Union 91 v. Boldrick Bus Services Ltd., 2010 CanLII 51873 (ON LRB)
• Bhasin v. Hrynew, 2014 SCC 71. [2014] 3 S.C.R. 494
• Barrie (City) v. Canadian Union of Public Employees, Local 2390 (CUPE), [1991] O.P.E.D. No 41
• Ontario Nurses’ Association v. St. Joseph’s Villa, [1993] O.P.E.D. No. 38
• Group of Employees, Applicants v. Parry Sound District General Hospital, [1996] O.P.E.D. No. 10
• The Regional Municipality of Niagara, Applicant v. CUPE, Local 1287 Niagara No. 2 (February 18, 1999) 0635-97 (P.E.H.T)
• Ford Motor Co. of Canada v. Group of Anonymous Employees, [2003] O.P.E.D. No. 2
• Ontario Nurses’ Association v Participating Nursing Homes, 2016 CanLII 275 (ON PEHT)
• Call-A-Service Inc./Harmony Hall Centre for Seniors (No.3), 2008 CanLII 88827 (ON PEHT)
• Fedoruk v. Thunder Bay Police Service, 2006 CanLII 61258 (ON PEHT)
• Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, [1996] O.P.E.D. No. 5

The Board

91. The Board submits that there were not changed circumstances within the meaning of section 14.1 of the Act despite the fact that the parties referred to changed circumstances in their communications. The disappearance of male comparators or changes to the job content of job classes do not render a pay equity plan inappropriate. Rather, those situations are more accurately characterized as issues related to pay equity maintenance.

92. With respect to the changes in job content of the female job classes in both the EA and O/C units, the Board says that these issues were not raised by OSSTF at Review Services, and are therefore not properly before the Tribunal.

93. Regarding OSSTF’s charge of a failure to bargain in good faith, the Board submits that simply because the fact that the JSCs were not prepared to simply adopt the ratings of the J.J.E.C.s is not indicative of bargaining in bad faith, because the Terms of Reference clearly contemplated the need for the J.S.C.s to make the final determination. Contrary to the argument of OSSTF, the Board did not resile from any agreement with OSSTF. There was nothing to resile from, as the Terms of Reference contemplated an agreement at the JJEC level (which occurred) and agreement at the JSC level (which did not occur due to an impasse due to the Board’s legitimate process concerns). The Terms of Reference contemplated a negotiation of a new pay equity plan, and the Board attempted to negotiate those terms in good faith, but to no avail. The parties could not agree at the JSC level. The Terms of Reference simply had no answer for that eventuality.

94. In any event, despite the failure of the negotiations between the parties, the Board maintained pay equity for the EA job class. Although the Maintenance III job classification no longer existed in the second collective agreement covering the PM unit, pay equity maintenance was achieved because the EA unit received the same percentage wage increases in collective bargaining as the PM unit (including the jobs that comprised Maintenance III since the inception of the original pay equity plan).

95. In support of its position in this matter, the Board relied upon the following authorities:

• Re Ontario Nurses’ Association (ONA) v. Women’s College Hospital, [1992] O.P.E.D. No. 20, 3 P.E.R. 61, 1992 CarswellOnt 6605
• Re Dare Foods Ltd. v. Bakery, Confectionary & Tobacco Workers International Union, Local 264, [1992] O.P.E.D. No. 34, 3 P.E.R. 142, 1992 CarswellOnt 6601
• Re Hospital for Sick Children, (14 February 1995) 0184-91; 0185-91 (P.E.H.T.), 1995 CanLII 7026 (ON PEHT)
• Re Windsor-Essex County Health Unit, (20 October 2010) 0958-09 (P.E.H.T.), 2010 CanLII 61201 (ON PEHT)
• Re York Catholic District School Board, (25 February 2014) 0641-13; 0875-13; 1794-13 (P.E.H.T.), 2014 CanLII 103781 (ON PEHT)

Analysis and Conclusions

96. The issues that the parties agree are to be determined are as follows:

i. Is there a changed circumstance that renders the existing pay equity plan no longer appropriate in accordance with sections 7 and 14.1 of the Act?

ii. Did the Board fail to negotiate pay equity in good faith in accordance with s. 14.1 of the Act?

iii. Has the Board failed to maintain pay equity in accordance with section 7 of the Act?

iv. What is the appropriate remedy?

97. The provisions of the Act engaged by this dispute are:

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

Idem

(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1). R.S.O. 1990, c. P.7, s. 7.

14 (1) In an establishment in which any of the employees are represented by a bargaining agent, there shall be a pay equity plan for each bargaining unit and a pay equity plan for that part of the establishment that is not in any bargaining unit.

Bargaining unit plans

(2) The employer and the bargaining agent for a bargaining unit shall negotiate in good faith and endeavour to agree, before the mandatory posting date, on,

(a) the gender-neutral comparison system used for the purposes of section 12; and

(b) a pay equity plan for the bargaining unit.

Idem

(3) As part of the negotiations required by subsection (2), the employer and the bargaining agent may agree, for the purposes of the pay equity plan,

(a) that the establishment of the employer includes two or more geographic divisions; and

(b) that a job class is a female job class or a male job class.

Posting of plan

(4) When an employer and a bargaining agent agree on a pay equity plan, they shall execute the agreement and, on or before the mandatory posting date, the employer shall post a copy of the plan in the workplace.

Deemed approval and first adjustments

(5) When a pay equity plan has been executed by an employer and a bargaining agent, the plan shall be deemed to have been approved by the Commission and, on the day provided for in the plan, the employer shall make the first adjustments in compensation required to achieve pay equity.

Changed circumstances

14.1 (1) If, in an establishment in which any of the employees are represented by a bargaining agent, the employer or the bargaining agent is of the view that because of changed circumstances in the establishment the pay equity plan for the bargaining unit is no longer appropriate, the employer or the bargaining agent, as the case may be, may by giving written notice require the other to enter into negotiations concerning the amendment of the plan.

Application of s. 14

(2) Clause 14 (2) (b) and subsections 14 (3), (4) and (5) apply, with necessary modifications, to the negotiations and to any amendment of the plan that is agreed upon.

Failure to agree

(3) If the employer and the bargaining agent do not agree on an amendment before the expiry of 120 days from the date on which notice to enter into negotiations is given, the employer shall give notice of the failure to the Commission.

Same

(4) Subsection (3) does not prevent the bargaining agent from notifying the Commission of a failure to agree on an amendment by the date referred to in that subsection.

Adjustments

(7) If a plan is amended under this section, the compensation adjustment for each position to which the amended plan applies shall not be less than the adjustment that would have been made under the plan before it was amended. 1993, c. 4, s. 9.

Complaints

22 (1) Any employer, employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining that there has been a contravention of this Act, the regulations or an order of the Commission.

Idem

(2) Any employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining with respect to a pay equity plan that applies to the employee or group of employees that,

(a) the plan is not being implemented according to its terms; or

(b) because of changed circumstances in the establishment, the plan is not appropriate for the female job class to which the employee or group of employees belongs.

98. Before commencing the analysis of the four issues raised in this matter, I wish to address the parties’ arguments concerning the credibility of the witnesses. OSSTF argued that, in assessing the evidence, the Tribunal should place particular weight on the documentary evidence, particularly Ms. Speare’s notes, and draw negative inferences against the Board regarding the lack of notes kept/produced by its witnesses. The Board, on the other hand, argued that the testimony of OSSTF’s witnesses was suspect given that many of them (not identified by the Board) heard the testimony of the others, and then gave their own rote testimony having been influenced by the previous witnesses. Furthermore, the Board submitted that, while OSSTF’s witnesses gave their evidence confidently in chief, their self-assurance was “shattered” in cross-examination.

99. In my view, the witnesses generally were forthright in their testimony, and tried their best to reconstruct events from the distant past, without succumbing to the influence of other witnesses who preceded them and whose evidence they may have heard before they themselves testified. On this point, I did not record the attendance of every individual in the hearing room on any given day, and counsel for the Board did not provide me with the names of individuals who were present while others testified. Furthermore, neither party sought an order excluding witnesses. Thus, even if I had any misgivings – and I do not - that a witness’s testimony was unduly coloured by what he or she heard in the hearing room earlier, I have no basis to test them in this decision.

100. It should not come as a surprise that witnesses’ memory of events was flawed. Mr. Morrow, for example, could not recall the JJEC being asked to explain its ratings to the JSC, when clearly that event took place. Even Ms. Speare, who consistently took notes, was sometimes unsure of her ability to recall. In my view, nothing material turns on those memory gaps and occasional inconsistencies.

101. Ms. Soostar’s explanations regarding the fate of her notes was admittedly confusing. I think that is because, with the passage of time, she was genuinely confused about what materials she destroyed and what materials she left behind with the Board when her employment ended. I doubt that she destroyed any of her notes in order to hinder OSSTF, and I decline to draw a negative inference because of that. On the other hand, I was not persuaded by her oral explanations for the positions she took on behalf of the Board in protest of a pay equity process that she had a significant hand in developing with OSSTF. Her case for the positions she took might have been more convincing had she been able to back them up with timely documentation of genuine concerns about specific problems that were beyond the control of the Board to resolve, short of bringing the entire process to a halt and proposing to re-trace key steps in that process.

Is there a changed circumstance that renders the existing pay equity plan no longer appropriate in accordance with [sections 7](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html#sec7_smooth) and [14.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html#sec14.1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html)?

102. OSSTF submits that section 14.1 was engaged by the changes in the second collective agreement applicable to the PM unit with respect to the former Maintenance II and Maintenance III classifications.

103. The Board, on the other hand, contends that the changes in the second collective agreement did not constitute a change in circumstances within the meaning of subsection 14.1(1) of the Act. The Board submits that the job content within the positions in Maintenance II and III did not vanish, only job titles changed. The Board says that that constituted a maintenance issue, and the fact that the parties themselves referred to these developments as a change in circumstances does not make it so for the purposes of the Act.

104. I do not think it is that simple. In my view, the Act does not necessarily compartmentalize changed circumstances and maintenance of pay equity, and never the twain shall meet. It seems to me that a change in circumstances may trigger the obligation to maintain pay equity under subsection 7(1), while at the same time not triggering subsection 14.1(1). For example, changes in the job content or title or compensation of a job class under a pay equity plan may constitute a change in circumstances that neither the employer nor the bargaining agent believes renders the pay equity plan no longer appropriate but that may nevertheless require consideration of the maintenance obligation in section 7 of the Act. The requirement to bargain (and to do so in good faith) in subsection 14.1(1) is engaged when one of the workplace parties (or both) forms a belief that some set of new circumstances makes the pay equity plan no longer appropriate, and communicates that in the form of a notice to bargain to the other side. Typically, it will be the trade union that takes the initiative in this regard, out of a concern that, under subsection 7(2) of the Act, it is statutorily barred from agreeing to compensation practices that, if adopted, would cause a contravention of subsection 7(1).

105. In Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, supra, formerly non-union Educational Assistants covered by a non-union “deemed approved” pay equity plan came to be represented by a trade union through the certification process under the Labour Relations Act, 1995. The same trade union also displaced an incumbent union that represented custodial, maintenance and cafeteria workers of the employer for whom the incumbent union had negotiated a deemed approved pay equity plan. The trade union notified the School Board that it wished to negotiate pay equity for both units of employees, on the bases that (i) the trade union’s acquisition of bargaining rights gave rise to a section 14.1 obligation by the employer to bargain amendments to the pay equity plans; and (ii) aspects of the pay equity plans themselves contravened the Act. The School Board took the position that it was not statutorily obligated to bargain pay equity with the trade union.

106. The Tribunal, following a decision in Ontario Nurses’ Association v. St. Joseph’s Villa, supra, found that the certification of the trade union in relation to the Educational Assistants gave rise to a section 14.1 change of circumstances that rendered the pay equity plan for the Educational Assistants no longer appropriate. It ordered that pay equity plan “split” as between the non-union group to which it pertained on the one hand, and, on the other hand, the now unionized Educational Assistants. The Tribunal observed that the change in circumstances required the employer to bargain with the trade union, and that if either of them held the view that there were aspects of the “split” pay equity plan applicable to Educational Assistants that made their pay equity plan no longer appropriate, they could identify those aspects and propose amendments. However, in respect of the other bargaining unit for which the trade union had acquired bargaining rights previously held by the incumbent union, the Tribunal found that that was not a change of circumstances that gave rise to a requirement to bargain, apparently because the pay equity plan for those employees had been the product of a negotiation with the employer and the employees’ union at the time. The change in the identity of their trade union was not a change in circumstances envisioned by section 14.1.

107. In the course of the decision in Ottawa Board of Education, the Tribunal made some interesting observations about the standards and scope of section 14.1 bargaining. The Tribunal wrote:

15 Where possible, we believe it preferable to ascertain from the Act what standards should apply to such negotiations, thereby enabling a consistent approach to negotiations of amendments necessitated because the plan is no longer appropriate. We refer to s. 14.1 for guidance. Section 14.1(2) identifies the provisions of the Act which can apply to negotiations and agreed to amendments of the plan: the parties may negotiate the pay equity plan for the bargaining unit (s. 14(2)(b)); they may consider whether the establishment of the employer should include two or more geographic divisions (s. 14(3)(a)); and, they may determine whether a job class is a female or a male job class (s. 14(3)(b)).

16 This section places significant limits on the negotiations which may flow from changed circumstances. As pointed out by counsel for the OBE [Ottawa Board of Education], the list of sections which apply to negotiations under s. 14.1(1) does not include s. 14(2)(a), the gender-neutral comparison system (the "GNCS") used for the purposes of s. 12. This is a significant omission, because what is to be amended does not go to the root of the plan. As well, the Act distinguishes between "a new plan" and "an amendment to a plan". Section 14.1(1) refers to "the amendment of the plan", language which differs from that found in s. 13.1(2), concerning the sale of a business, where the wording is "agreeing on a new plan". The choice of words in s. 14.1(1), narrows the scope of the negotiations and the resulting amendments.

108. And at paragraphs 18 and 19 of the decision, the Tribunal said the following about the relationship of section 14.1 to the obligation to maintain pay equity (or in a trade union’s case, not to agree to compensation practices that are a consequence of the employer’s failure to maintain pay equity);

18 As the OBE has acknowledged that it is obligated to negotiate with the OSSTF with respect to the maintenance of pay equity, we take this opportunity to comment briefly upon the appropriate process for this joint responsibility. We agree with the statement of counsel for the OBE that s. 14.1 applies to maintenance. As an employer, the OBE is under an obligation to maintain compensation practices that provide for pay equity, s. 7(1). The OBE, as a Part II employer, refers to Part II for guidance on how to maintain pay equity, just as it did for the establishment of pay equity. As the bargaining agent, the OSSTF is obligated not to agree to compensation practices that fail to provide for the maintenance of pay equity for any of the bargaining units it represents, s. 7(2). By allowing for a subjective determination of when negotiations may be necessary, s. 14.1(1) provides the procedure by which the OSSTF can comply with its s. 7(2) obligation. If there is no agreement, then there is a procedure for seeking the Commission's assistance in settling, deciding or adjudicating the dispute.

19 "To maintain" is very general language, with several different meanings in the administration of compensation practices. On-going and regular maintenance of an employer's compensation practices may, or may not, affect the provision of pay equity. The direction given to Part II employers is that when the impact of on-going maintenance amounts to changed circumstances in the establishment making an already deemed approved plan no longer appropriate, the plan is to be amended. Where there is a bargaining agent, these amendments are to be negotiated with the bargaining agent. Once amended pursuant to s. 14.1, the amended plan is again deemed approved, s. 14.2(2) and s. 14(5). Where there is no bargaining agent, the amended plan is to be posted by the employer, s. 14.1(5), s. 14.2(1).

109. I accept counsel for the Board’s submission that the bandying about by the parties of the term “change in circumstances” is not determinative of whether there was a change of circumstances within the meaning of subsection 14.1(1). Although the phrase was uttered repeatedly, certainly no one expressly said that the pay equity plans applicable to the EA and O/C units were no longer appropriate. Substance should not give way to form. The Tribunal must look beyond the words and descriptors used by the workplace parties and their principals, who, though educated and professional, are not legally trained experts. Rather than placing great significance on how the parties described the exercise upon which they embarked, it is preferable to consider what they did. In that regard, the evidence discloses that the parties engaged in a virtual overhaul of the pay equity plans, including the replacement of the original GNCS with a GNCS developed by OSSTF, the completion of job descriptions and new questionnaires, the re-evaluation of all the female job classes as well as evaluations of a sampling of the new male job classes. The parties looked at the results of the evaluations in the form of Rank Order Reports, and they even briefly considered a banding scenario in relation to the EAs. Soon after reaching that point, the EA project effectively collapsed, and the O/C project followed suit. But it is clear from the conduct of the parties up to the point of their impasse that the Board and the OSSTF shared the view that the original pay equity plans were no longer appropriate, and had to be amended, if not entirely replaced.

110. To be fair, this was not Ms. Soostar’s preferred approach, at least initially. In her earliest correspondence to OSSTF in November 2001, which I have described in some detail earlier in this decision, she floated other, less complicated options (some of which may have originated with certain OSSTF representatives who appear to have spoken to Ms. Soostar informally) to address the impact of the changes in the Plant Maintenance department upon the pay equity plans. She volunteered that if those options were not satisfactory, “we will have to go through proper pay equity”, all the while expressing hope that that would not be necessary. For better or worse, the parties chose “proper pay equity”, and as I have explained, essentially went down the road of reconstructing new pay equity plans to replace the versions negotiated in 2000. Whether or not they were statutorily required to go that far is now largely an academic question. They both conducted themselves pursuant to a shared view that the pay equity plans were no longer appropriate. Subsection 14.1(1) is easily triggered. If just one of the workplace parties is of the opinion that an implemented pay equity plan is no longer appropriate due to changed circumstances in the establishment, the other workplace party must, if served with notice to bargain, negotiate an amendment to the plan. That does not mean that the party served with notice to bargain must necessarily accept that there are changed circumstances that render the pay equity plan no longer appropriate. It is entitled to take the position that the pay equity plan is still appropriate, for example, or that, by way of another example, the changed circumstances do not pertain to the establishment or do not even qualify as changed circumstances within the meaning of the subsection. Any difference of opinion between the workplace parties about the applicability of subsection 14.1 can then be referred to Review Services for determination.

111. In this case, both parties appear to have accepted that their pay equity plans were no longer appropriate. Technically, neither party gave the other a formal notice to bargain, but bargain they did, including the negotiation of Terms of Reference to guide the process they believed was necessary

112. There is another way to view what happened between these parties. Counsel for the Board argued that what really occurred in this case is that the parties recognized there was a pay equity maintenance issue regarding the changes in the Plant Maintenance department. That is not an unreasonable interpretation of the facts. But again, even so, the parties adopted a very broad range of measures to deal with a relatively simple problem, that being the identification of a new male comparator for each bargaining unit. Whether the facts are viewed through the lens of section 7 or section 14.1, the parties conducted themselves in a manner that suggests they believed their original pay equity plans were in need of a comprehensive refurbishment if not outright replacement. They entered into bargaining about a pay equity process that would ensure either that the original pay equity plans were maintained (as required by section 7) or amended (via subsection 14.1).

Did the Board fail to negotiate pay equity in good faith in accordance with [s. 14.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html#sec14.1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html)?

113. In my view, once the parties chose to negotiate pay equity, they were under a statutory obligation to negotiate in good faith. This Tribunal dealt with the issue of good faith bargaining in the decision in Ontario Nurses’ Association, and Regional Municipality of Haldimand-Norfolk, supra. There the trade union (“ONA”) had bargaining rights for employees in the employer’s public health unit and for a second bargaining unit consisting of two homes for the aged. ONA filed a complaint that the employer failed to bargain in good faith when, among other things, it selected and implemented a certain gender neutral comparison system, and collected job content information, without the input of ONA. Furthermore, the employer resisted ONA’s demands for changes to the GNCS and the job content questionnaires developed by the employer. The Tribunal found the employer to have violated the Act’s provision regarding the duty to bargain in good faith and endeavour to agree on a GNCS and a pay equity plan. In doing so, the Tribunal made some observations that are apposite in the present case.

114. Beginning at paragraph 107, the Tribunal wrote (footnotes omitted):

107 The purpose of the Pay Equity Act, 1987 differs, and in contrast to the Labour Relations Act, the Act specifies the content, the time frames and results of the bargaining process. It is against that legislative backdrop that the bargaining obligations must be assessed. In fight of those substantial statutory differences, in this case we find the Labour Board's distinction between "hard" and "surface" bargaining is not relevant or useful to our pay equity inquiry. The basis for "hard" bargaining in the Labour Board's jurisprudence is that, because the Labour Relations Act requires no specific results, self-interest in content can be taken to bargaining impasse and then to economic sanctions. In contrast, the legislative scheme of the Pay Equity Act, 1987 is designed to redress systemic discrimination. Although both parties to pay equity negotiations will inevitably bargain for their self interest, that self interest does not take precedence over the statutory requirements to establish and maintain pay equity. The parties cannot rely upon process arguments to undermine the substantive goals and requirements of the legislation [Footnote: P. Macklem, B. Langille "Beyond Belief: Labour Law's Duty to Bargain", Queen's Law Journal, vol. 13, No. 1, 1988 at p. 100]. Where there is honest disagreement over the content requirements of the Act, the Tribunal provides a dispute resolution mechanism.

108 Therefore, in light of the content requirements of the bargaining obligation under the Pay Equity Act, 1987, the Tribunal has assessed both the process and the substance of pay equity negotiations as required by the Act; a failure to negotiate in good faith or endeavour to agree with respect to either of these aspects of bargaining will constitute a violation of the Act. This is a first look at many of these issues. In the circumstances, we find the statements of the Labour Board apt in its discussion of the then new remedial provisions under the bargaining duty of the Labour Relations Act. The Board said that the legal standard of the duty to bargain is broad, and substantial elaboration on a case by case basis will be required to fully articulate the duty and to achieve certainty and predictability [Footnote: DeVilbiss (Canada) Limited, [1976] O.L.R.B. Rep. March 49 at Par. 15]. We adopt this approach of incremental decision making. As each case comes before the Tribunal, we will be able to assess and decide the precise contours of the bargaining obligation as required by the Act.

109 In these early cases, it is helpful to analyse the language of the statute. Section 14 requires the parties to "negotiate in good faith" and to "endeavour to agree upon" the gender neutral comparison system and the pay equity plan before the mandatory posting date. The Act therefore specifies two bargaining obligations, first that the parties negotiate in "good faith" and second that they "endeavour to agree". With respect to the first part of the obligation, "good faith" requires an assessment by the Tribunal of how a reasonable person or party in good faith would approach these negotiations given the statutory directive to establish and maintain pay equity and to redress systemic gender wage discrimination. The second part of the obligation, "endeavour to agree", requires not only an assessment of their efforts to meet, discuss, and meaningfully negotiate an agreement on the gender neutral comparison system and pay equity plan, but also an investigation into whether the substance of their proposals meet the obligations of the Act. In approaching a section 14 complaint, the Tribunal will investigate whether in the circumstances, the parties negotiated in good faith and whether they endeavoured to agree; the Tribunal will also inquire whether the conduct of the party, both in substance and process, was such that it hindered pay equity bargaining.

115. I turn next to an examination of the conduct of the bargaining in this case. OSSTF’s complaint about the Board’s bargaining stance starts with events late in the pay equity exercise. Before April 9, 2010 the Board indisputably conducted itself in compliance with the Act. It was quick to recognize the pay equity implications inherent in the classification changes in the collective agreement applicable to the PM unit, and communicated constructively on that issue with the designated bargaining agent, OSSTF. Although it may have preferred other options to address the aforementioned pay equity implications, nevertheless it agreed to a comprehensive and lengthy process (codified in Terms of Reference) for dealing with them, including the collection of job content by job class incumbents. It accepted OSSTF’s GNCS as the appropriate evaluation system. It agreed to a bipartite committee structure to evaluate, and to oversee the evaluation, of female and male job classes, during working hours. When the JJECs raised concerns about the adequacy of the male job context sheets, the Board authorized the completion of job analysis questionnaires by incumbents in certain male job classes in the Plant Maintenance department. In all respects, the Board was cooperative.

116. To assess the Board’s conduct afterward, it is necessary to review the salient events from April 9, 2010 until January 10, 2011. To recap briefly, the EA JSC convened on April 9, 2010 to review the EA JJEC’s ratings. As was entirely their right pursuant to the Terms of Reference, some members of the EA JSC, who were not entirely comfortable with the rating results, raised questions about how some ratings had been determined. Those questions were referred back to the EA JJEC, but the EA JJEC made no rating changes as a result.

117. A similar process unfolded in respect of the O/C unit. Questions were raised at the O/C JSC and referred back to the O/C JJEC. The O/C JJEC, unlike the EA counterpart, did make some rating changes, albeit not the kind of changes that some of the Board members of the O/C JJEC appear to have anticipated when the results were reviewed on June 4, 2010.

118. May 7, 2010 marked the first time that the Board, having regard to the total points allocated to each job class, became aware of the implications of the rankings reached by the EA JJEC. The members of the EA JJEC could plainly see the very close scoring of the Refrigeration Mechanic compared to the EA. Furthermore, Ms. Soostar recognized that the Refrigeration Mechanic male job class was paid more at job rate than the EA job class, because she knew (and stated to the OSSTF) that if a 92% cap on the Refrigeration Mechanic’s job rate were to apply, there would be no pay equity adjustment required, and no cost to the Board. The OSSTF says that the Board agreed to the Refrigeration Mechanic as the male comparator. The facts do not support that conclusion. Any agreement by the Board was provisional upon acceptance by the OSSTF of the 92% threshold, which was not forthcoming. The meeting ended without resolution. It is important to note, however, that the Board did not raise any concerns at this meeting with the process by which the EA JJEC had arrived at its ratings (nor is there any evidence that the Board representatives did so regarding the O/C JJEC at its meeting of June 4, 2010).

119. On June 7, 2010, Ms. Soostar met with Ms. Coates and Ms. Speare. Ms. Speare was anticipating discussion of pay equity, as that is the abbreviated title she wrote (“EA pe”) as the heading of her notes. Pay equity was discussed to some extent, although Ms. Soostar began the meeting announcing a Board deficit and the possibility of job losses of EAs. Following that, Ms. Soostar then for the first time revealed that she had concerns about the pay equity process that she was not prepared to reveal until she had an opportunity to speak to legal counsel. After the meeting, Ms. Soostar revealed privately to Ms. Speare the threat to her continued employment should she agree with OSSTF to pay equity adjustments.

120. I find the following noteworthy about that meeting. First of all, I conclude that this meeting was called primarily to discuss pay equity for the EAs. That is why Ms. Speare was in attendance, and her notes reflect that that is what she anticipated would be discussed. Secondly, Ms. Soostar prefaced her remarks about pay equity with comments about a large budgetary deficit and the possibility of EA job cuts. In my view, that was not a coincidence. Ms. Soostar was not so subtly signaling to OSSTF that she would not be agreeing to any pay equity outcome that resulted in financial costs to the Board, particularly in a period of budget restraint. That was confirmed in the private conversation she later had with Ms. Soostar. Thirdly, it is curious that, more than a month following the May 7 meeting at which Ms. Soostar indicated she would be speaking to legal counsel about pay equity, she had not apparently done so. Moreover, she was not prepared to explain the pay equity process concerns she claimed she had. Regardless of Ms. Soostar’s testimony that she “believed” she had raised these concerns previously with Ms. Speare, I do not accept that she did so. First of all, she provided no specifics of the circumstances in which she made such a disclosure to Ms. Speare. Secondly, nothing in Ms. Speare’s notes confirms that claim. Thirdly, Ms. Speare testified that she was confused by Ms. Soostar’s concerns. Fourthly, if indeed Ms. Soostar had previously disclosed her concerns to Ms. Speare or anyone else, why was she not prepared to repeat them at the meeting, but instead insisted that she needed to consult counsel before saying more?

121. More than four months later, Ms. Soostar finally indicated in her letter of October 21, 2010 the areas of her concern (while at the same time suggesting there might be other areas), and the proposed remedies to fix them. Noteworthy, she provided no facts to back up her claims of conflict of interest among the JJEC members, or gender bias, or their use of “unequal sources”. In my view, this was not due to an inadvertent oversight. Ms. Soostar was an experienced negotiator. She knew, or she ought to have known, that there was next to nothing comprehensible by OSSTF in the criticisms she was articulating for the very first time. Indeed, Ms. Speare wrote three e-mails to Ms. Soostar requesting an explanation, before she obtained a response.

122. In her letter of November 26, 2010, Ms. Soostar provided some particulars of her three areas of concern (and again suggested there might be other areas of concern), sufficient to enable OSSTF to respond on January 7, 2011 at a meeting between the parties covering both the EA and O/C. At that meeting, Ms. Soostar said that the Board could not agree to the final ratings of the JJECs because they were “out of whack”. In the course of her testimony, Ms. Soostar was not able to shed much light on what she found incongruous in the rating results, other than to say she felt the male job class of Electrician was rated too low, and that there should have been a greater point differential between the female job classes of Secretary and Assistant Secretary. She was not able to provide a coherent rationale for her perspective concerning those ratings. To her, the ratings simply did not “make sense”.

123. When viewed in its totality, the conduct of the School Board from April 9, 2010 until January 7, 2011 is inconsistent with a party negotiating in good faith and endeavouring to agree on an amended pay equity plan. That is made manifest by the following. Once the financial implications for the EAs became apparent to the Board, the pay equity process began faltering. I do not fault Ms. Soostar for attempting to avoid the fiscal impact of a comparison between the job rate of the EAs with the job rate of the Refrigeration Mechanic. I accept the Board’s argument that the Terms of Reference contemplated a negotiation of the pay equity results flowing from the ratings of the JJECs. Ms. Soostar was entitled to propose a 92% threshold applicable to the Refrigerator Mechanic, despite the fact that she had no idea why the parties had settled on that threshold in the original pay equity plan for the EAs. However, she was not entitled to raise inauthentic concerns over the processes followed by the JJECs as a means to avoid any pay equity adjustment under any circumstances, which is what I find she did or was instructed by the Board to do.

124. That these concerns were inauthentic is plain and obvious. First of all, why did the Board not raise any concern much earlier than June 4, 2010? And why did it take the Board more than four months to articulate (in very vague terms) its disquiet about the pay equity process? Ms. Soostar testified that she was made aware of Ms. Ramage’s concerns, but that she hoped that any issues would be resolved without the need for any action on her part, and, furthermore, she did not want to be accused of interfering. However, Ms. Ramage’s concerns were mainly about difficulties in scheduling JJEC meetings and the time it was taking to finish the evaluations. The concern Ms. Ramage conveyed to Ms. Soostar about JJEC members rating their own jobs was not an issue addressed in the Terms of Reference, and furthermore, it had to have been patently obvious to the Board that the duly appointed EAs on the JJEC would be involved in the evaluation of their jobs, seeing as the bargaining unit at that time consisted of a single job classification. Furthermore, there was no evidence that the O/C JJEC union members rated their own jobs, and in fact there was some evidence that they took steps to avoid doing so. While I am prepared to accept that Ms. Soostar may have declined to raise any concerns with the OSSTF because she hoped the issues would somehow get resolved, I also conclude that she did not believe there was a sufficiently serious problem that required her intervention. Had she believed there were important issues that compromised the integrity of the pay equity process the parties had agreed to, her relationship with Ms. Speare was sufficiently close and friendly that there would have been no reason for Ms. Soostar to fear contacting her about those concerns.

125. In addition, there was no compelling evidence that the JJECs placed disproportionate reliance on any particular category of the job content documents, or refused to consider one of the three sources available to them, as suggested by Ms. Soostar in her correspondence of November 26, 2010. The JJECs may have found the job context sheets of little value, and may have placed greater reliance upon the far more detailed job analysis questionnaires. The Terms of Reference required the JJECs to consider three forms of documented job content (questionnaire, job description and job context sheet), but did not require the JJECs to place equal weight on the various forms of job content information before them. Nor was there any requirement in the Terms of Reference for male job class incumbents to be interviewed during JJECs as a measure to balance the personal observations of the JJEC members about the job classes that were before them for evaluation. Mr. Moore’s evidence that requests were made to (and ultimately ignored by) Ms. Speare to bring in male job incumbents (in positions that Mr. Morrow did not identify) to clarify their job duties was contradicted not only by Ms. Speare and the OSSTF witnesses who served on the JJECs, but by Ms. Ramage as well, who said she could not recall such a request being made. I believe Mr. Morrow, who I judged to be a candid witness, was simply mistaken about that aspect of his testimony. Finally, I point out that the Board was in control of the selection of its JJEC representatives. There was nothing to prevent the Board from having appointed a representative from the Maintenance Department to either of the JJECs. It did not exercise that option.

126. In my view, the reason the Board was not prepared to accept the ratings of the JJECs was due not to process concerns but to financial concerns. Counsel for the Board argued that this is mere speculation. I respectfully disagree. Ms. Soostar made it plain to Ms. Speare on June 10, 2010 that the Board, faced with serious fiscal constraints, would not consent to pay equity adjustments, and that Ms. Soostar faced the loss of her job in the event she agreed to any such wage adjustments. Whether that was true or not, it signaled to OSSTF that the Board’s negotiating position on pay equity was fixed, and that the reason was avoidance of additional cost. Moreover, as of June 10, 2010, the Board did not reveal the basis for its ostensible apprehension about the pay equity process, and took another four months to formally identify the issues about which it says it was concerned. Even then, in late October 2010, Ms. Soostar’s explanation was entirely vague. A month later, after several inquiries by Ms. Speare, the details, such as they were, emerged. Some of the Board’s rationale – its criticism that JJEC members rated their own jobs – was simply wrong in the case of the O/C JJEC, and disingenuous in respect of the EA JJEC. All of this conduct suggests that the Board was intent on avoiding an agreement with OSSTF on an amended pay equity plan because of a fear that the process it had agreed to and followed was leading to wage adjustments for at least some of the female job classes. As the Tribunal noted at paragraph 141 in the Haldimand-Norfolk decision, supra, “any consideration of cost savings which has the effect of parties bypassing their statutory obligations is not acceptable.”

127. For these reasons, I find that the Board was in violation of its duty to bargain and to endeavour to reach an agreement with OSSTF.

Has the Board failed to maintain pay equity in accordance with [section 7](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html#sec7_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p7/latest/rso-1990-c-p7.html)?

128. The Board raises a jurisdictional objection regarding OSSTF’s position that the Board has failed to maintain pay equity by, among other things, not taking into account changes in the job duties of the female job classes since the original pay equity plans were finalized.

129. In Ongwanada v. Ontario Public Service Employees' Union, Local 433, 2001 CanLII 28100 (ON PEHT), the applicant employer’s case rested on an assertion that it was not required to increase the job rates of the female job classes of the employees represented by the respondent trade union to match the job rates of male job classes in a CUPE bargaining unit because of the exception in subsection 8(2) allowing a difference in compensation that is the result of a difference in bargaining strength. OPSEU brought a motion before the Tribunal that the applicant, by its own conduct, was precluded from relying on subsection 8(2). The applicant objected to the Tribunal hearing that motion on the basis that the conduct of the applicant had not been raised with the Review Officer.

130. The Tribunal examined several cases that were on point, including Scarborough (No. 1) (1994), 5 P.E.R. 45. The majority of the Tribunal observed at paragraph 15:

131. From the examination of the above cases, several principles emerge.

• the Tribunal determines whether a matter is properly before it.
• although the Tribunal has sometimes referred to the above inquiry as being jurisdictional in nature, it has also characterized it as a question of timeliness, and held that it is premature to deal with issues not fully canvassed at Review Services.
• regardless of characterization, the Tribunal’s refusal to deal with matters not canvassed at Review Services has only ever been applied with respect to substantive issues.
• the rationale for this approach has been based on ensuring the efficacy of Review Services’ investigative and mediative role.

131. The majority determined that OPSEU’s motion involved only a legal argument related to a substantive issue dealt with by Review Services that neither impaired nor undermined the Review Officer’s investigative and mediative role. Accordingly, the OPSEU motion was properly before the Tribunal.

132. OSSTF submits that this case is clearly a case about pay equity maintenance, and that the Board cannot pretend otherwise. However, that is not really an answer to the Board’s objection. Changes in job duties and responsibilities in female or male job classes that post-date a deemed approved pay equity plan may engage the duty to maintain pay equity. So too may changes in compensation of male job classes that are used for purposes of comparison with female job classes. There may be other circumstances, as well, that require an employer to take steps to ensure it is maintaining compensation practices that provide for pay equity pursuant to subsection 7(1) of the Act, and that require a trade union, under subsection 7(2), not to agree to compensation practices that do not so provide.

133. To the extent that OSSTF says the Board breached its duty to maintain pay equity by failing to address changes in the job content of female job classes in the EA and O/C bargaining units, that allegation raises a substantive issue that, in my view, was not placed before the Review Officer and was not addressed by the Review Officer in the Notice of Decision issued in either of these matters. I have reviewed the Notice of Decision that was issued for the EA unit and for the O/C unit, and it is apparent from the content of those documents that the Review Officer did not turn her mind to the issue of changed job content in her assessment of the Board’s obligation to maintain pay equity. Moreover, there is no evidence before me that OSSTF raised this issue squarely with the Review Officer. Indeed, in her final reply submissions of June 19, 2018, OSSTF conceded that “[t]he Board is correct that these [job content changes] were not fully canvassed before the Officer, and we have accordingly not made much of them in argument.” Accordingly, while there may well be pay equity maintenance issues arising from changes in the job duties of female job classes (or the introduction of a new classification in both the EA and the O/C units) those issues have not yet been the subject of investigation and mediation by Review Services, and are not properly before the Tribunal at this point in these proceedings.

134. There was no evidence adduced in the hearing concerning the development of a wage gap between the female job classes in either the EA or the O/C bargaining units and their male comparators in the PM unit since the posting of the EA and O/C pay equity plans in 2000. That appears to be because across-the-board wage increases resulting from collective bargaining over the years since 2000 have not varied from one bargaining unit to another. Thus, given the terms of the original pay equity plans, it cannot be said that the female job classes have lost ground in compensation vis-à-vis the male comparators, at least until the parties reach agreement on the new male comparators. Then there may well be obvious measures that the Board will have to consider in order to meet its statutory duty under subsection 7(1) of the Act. That remains to be seen. At this point in time, however, the Tribunal is left to conclude that, based on the information before it, the Board has not breached its duty to maintain compensation practices that provide for pay equity.

What is the appropriate remedy?

135. In respect of the EA unit, OSSTF seeks the following remedies:

(a) A Declaration that the Board has failed to maintain pay equity;

(b) A Declaration that the Board has negotiated in bad faith;

(c) An Order for a pay equity plan that establishes pay equity for the Educational Assistants Bargaining Unit in which the Refrigeration Mechanic job class is the male comparator for the Educational Assistants job class, with pay equity adjustments made accordingly retroactive to September 1, 2001;

(d) In the alternative, an Order amending the Pay Equity Plan to ensure that pay equity is maintained, which recognises that the Refrigeration Mechanic job class is the male comparator for the Educational Assistants job class. with pay equity adjustments made accordingly retroactive to September 1, 2001;

(e) An Order to make whole all employees who are owed a pay equity adjustment retroactive to September 1, 2001;

(f) Any other remedy required to meet the objectives of the Act and that this Tribunal considers just and equitable in the circumstances

136. For the O/C unit, OSSTF seeks the same remedies in subparagraphs (a), (b), (e) and (f) in the preceding paragraph, as well as the following:

(a) An Order for a pay equity plan that establishes pay equity for the Office and Clerical Bargaining Unit which utilizes the following male comparators for the following female job classes:

Female Job Class

Male Comparator

Senior Secretary Secondary

EMS

Senior Secretary Elementary

EMS

Asst. Sec-Student Services

Electrician

Assistant Secretary Secondary

Lead Hand

Assistant Secretary Elementary

Lead Hand

(b) In the alternative, an Order amending the Pay Equity Plan to ensure that pay equity is maintained, which recognises that the mate comparators for the female job classes as stated at paragraph (b) above, with pay equity adjustments made accordingly retroactive to September 1, 2001;

137. The Tribunal has broad remedial powers, following a hearing, under subsection 25(2) of the Act, including the authority to confirm, vary or revoke orders of Review Officers, and to order a party to take such action or refrain from taking such action as in the Tribunal’s opinion is required in the circumstances.

138. For the reasons stated earlier in this decision, the Tribunal declares that the Board violated its duty to bargain in good faith and to endeavour to reach an agreement to amend the pay equity plans with OSSTF. The Tribunal is prepared to provide further remedial relief (described below) in order to facilitate the resumption of negotiations between the parties and to ameliorate the Board’s failure to bargain in good faith. In my view, however, it is not appropriate for the Tribunal to direct the result of those negotiations, as OSSTF effectively requests in the orders it seeks. Rather the parties should finish what they started, pursuant to the process to which they agreed they would be bound.

139. To that end, the Tribunal orders the parties forthwith to resume their negotiations pursuant to the Terms of Reference applicable to each unit, based upon the final ratings determined by the respective JJECs. The Board is not entitled to raise any process concerns relating to the conduct of the JJECs in the course of these resumed negotiations. Moreover, in the endeavour to reach agreement on the appropriate male comparators for the amended pay equity plans, the Board is not entitled, absent a rationale that does not run afoul of its obligations under the Act, to bargain to impasse maintaining the same percentage thresholds in respect of the new male comparators that were negotiated for the former male comparators in the 2000 pay equity plans.

140. The parties shall have until January 31, 2019 (or such other period as they may mutually agree) to reach agreement on amended pay equity plans for the two bargaining units. If the parties are unable to reach agreement within the prescribed period, the Tribunal, pursuant to subsection 25(1)(a) of the Act, orders that a Review Officer prepare amended pay equity plans for the Board’s establishment. Since I have found that the Board bears responsibility for having de-railed the negotiations in 2010, I order the Board to pay all of the costs of preparing the amended plans, including any costs as a result of the Review Officer retaining the services of such experts as he or she considers necessary to assist in the preparation of the amended plans.

Dated at Toronto this 17th day of December 2018.

“Patrick Kelly” ____

Patrick Kelly, Alternate Chair

Footnotes

1. 1The hearing in these matters commenced on October 12, 2016 before a tripartite panel that I chaired. However, due to illness of one of the members of the panel, the hearing proceeded before me alone commencing on November 14, 2017 on the agreement of the parties.
2. 2In July 2010 a new classification, Designated Early Childhood Educator, was added to the EA unit. However, by this stage the pay equity exercise following the posting of the 2000 pay equity plans was at a standstill.
3. 3A fifth classification emerged during the events described in this decision, that of Secretary – Student Services (also sometimes referred to as Guidance Secretary), the duties of which had previously been performed within the Assistant Secretary, Secondary classification. The Secretary – Student Services was evaluated by the O/C JJEC in addition to the other four pre-existing classifications.
4. 4EA collective agreement 2001 – 2003.
5. 5O/C collective agreement 2001 – 2003
6. 6EA and O/C collective agreements 2003 – 2004, 2004 – 2007 and 2008 -2012.
7. 7In a set of typed notes developed by Ms. Soostar of a spring meeting in 2006 with Ms. Speare, the notes refer to the Maintenance Clerk as an historically male dominated job class.
8. 8Ms. Speare’s notes also indicate that the parties contemplated the existence of a maintenance steering committee, although no such committee was ever struck.
9. 9Five male job classes ultimately were agreed from the PM unit as potential male comparators in respect of the female job classes in the EA and O/C units: Electrician, Energy Management Coordinator, HVAC Mechanic, Lead Hand (also referred to as Building Maintenance Lead Hand) and Refrigeration Mechanic.
10. 10No such prohibition was ever instituted because the EA unit consists only of a single EA classification.
11. 11According to Ms. Speare’s unchallenged evidence, the Board was reluctant to involve the PM unit incumbents in the JAQ job collection process, and preferred to have the JJECs rely upon job context sheets and job descriptions for those male job classes. As will be seen, however, in response to complaints by the JJECs regarding the inadequacy of the job context sheets, the Board agreed that the male job incumbents in the potential male job comparator positions would complete JAQs.
12. 12It would appear from a comparison of Exhibits 31 and 32, which were Ms. Soostar’s copies of the respective Terms of Reference, that one substantial difference between them was that the O/C Terms of Reference contained a provision stating that “[w]herever possible incumbent(s) and supervisor(s) shall not evaluate their own job class(es).” The EA Terms of Reference did not contain such a provision.
13. 13Ms. Soostar’s copy of the Terms of Reference for the O/C unit includes a hand-written approximation of clause 5.2 as it appears in her copy of the EA Terms of Reference.
14. 14Section 9 in Ms. Soostar’s version of the O/C Terms of Reference
15. 15Ms. Speare testified that, from her understanding based on what Ms. Soostar told her, each JSC had final authority over the end results of the pay equity exercise, without any need for ratification. However, in cross-examination she conceded that the Terms of Reference contemplated final approval and signatures, and that no signatures were ever placed on a document commemorating the pay equity exercise.
16. 16Section 11 in Ms. Soostar’s version of the O/C Terms of Reference.
17. 17It would appear that the EA JJEC met on nine occasions in total, and the O/C JJEC roughly the same number of occasions.
18. 18With respect to the male job class JAQs, the members of the EA JJEC sometimes could not tell which of the incumbent or the supervisor had written in comments or made edits on, or crossed out small portions of, the JAQ, although according to Ms. Johnson, the Board representatives sometimes recognized the handwriting of the supervisors on the male job class JAQs. In at least one case, there were pages missing from a JAQ, and the JJEC members sought clarification, but Ms. Johnson could not remember how that issue was resolved. Nevertheless, no one made any formal complaint or objection. No one asked to scrap an evaluation and start over. They simply asked questions of Ms. Speare, or referred to job descriptions and job context sheets, and made what sense of it they felt they could.
19. 19Generally, the OSSTF witnesses recalled that colour-coded copies were brought to each meeting and were available for reference. On the other hand, Ms. Ramage testified that she never saw any such documents until after the OSSTF applications were filed with the Tribunal, and that they were located in Shirley Graham’s office in Human Resources. For her part, Ms. Graham had no recollection of any such documents.
20. 20Oddly, Mr. Morrow, a Board representative on the O/C JJEC, could not recall that the O/C JSC ever referred any concerns about the ratings back to the JJEC, although it is clear from the preponderance of the testimony of other witnesses that the O/C JSC did so, and that the O/C JJEC reconsidered several ratings.