PAY EQUITY HEARINGS TRIBUNAL
PEHT Case No: 0085-16-PE
Ontario Nurses' Association, Applicant v Central Community Care Access Centre, Respondent
PEHT Case No: 0086-16-PE
Ontario Nurses' Association, Applicant v Erie St. Clair Community Care Access Centre, Respondent
PEHT Case No: 0087-16-PE
Ontario Nurses' Association, Applicant v Waterloo Wellington Community Care Access Centre, Respondent
PEHT Case No: 0088-16-PE
Ontario Nurses' Association, Applicant v Central East Community Care Access Centre, Respondent
PEHT Case No: 0089-16-PE
Ontario Nurses' Association, Applicant v Hamilton Niagara Haldimand Brant Community Care Access Centre, Respondent
PEHT Case No: 0090-16-PE
Ontario Nurses' Association, Applicant v North East Community Care Access Centre, Respondent
PEHT Case No: 0091-16-PE
Ontario Nurses' Association, Applicant v North Simcoe Muskoka Community Care Access Centre, Respondent
PEHT Case No: 0092-16-PE
Ontario Nurses' Association, Applicant v North West Community Care Access Centre, Respondent
PEHT Case No: 0093-16-PE
Ontario Nurses' Association, Applicant v South East Community Care Access Centre, Respondent
PEHT Case No: 0094-16-PE
Ontario Nurses' Association, Applicant v South West Community Care Access Centre, Respondent
BEFORE: Patrick Kelly, Alternate Chair, Carol Phillips and Carla Zabek, Members
DECISION OF THE TRIBUNAL: May 16, 2019
Following the conclusion of the oral hearing in these matters, the Ontario Superior Court of Justice (Divisional Court) issued two decisions in respect of judicial review applications: Ontario Nurses’ Association v. Participating Nursing Homes, 2019 ONSC 2168 (“the ONA Decision”) and Participating Nursing Homes v. Ontario Nurses’ Association, 2019 ONSC 2772 (“the Homes Decision”).
Both of the Court’s decisions concerned judicial review of a decision of the Tribunal in Ontario Nurses' Association v Participating Nursing Homes, 2016 CanLII 2675 (ON PEHT) (“the Tribunal’s Decision”). In the ONA Decision, the Court determined that the Tribunal erred by failing to consider Charter of Rights and Freedoms (“the Charter”) values when interpreting the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”). The Court stated that the Tribunal’s Decision failed to give effect as fully as possible to the Charter equality protection, given the Act’s statutory mandate to recognize and redress the systemic discrimination that women have suffered in the way that they are compensated in the workforce and to ensure such discrimination does not re-emerge. This, the Court concluded, rendered the Tribunal’s Decision unreasonable. Accordingly, the Court remitted the matter to the Tribunal to specify what procedures should be used to ensure that the claimants who achieved pay equity through the proxy methodology under the Act continue to have access to a male comparator in order to determine whether pay equity has been maintained.
In the Homes Decision, the Court dismissed the judicial review application by the Participating Nursing Homes.
The matter before us involves maintenance of pay equity plans under the proxy methodology. More specifically it involves the question whether the trade union is entitled to bargain pay equity maintenance, and that question engages a Charter values issue concerning the freedom of association which the parties addressed in final argument.
The parties had no opportunity, of course, to address the implications of the ONA Decision referred to above in the course of the hearing in these matters, particularly in respect of the Court’s reasons concerning Charter values. They are invited to make any written submissions that they wish to concerning the ONA Decision on or before May 31, 2019. They shall each have an opportunity to make reply submissions on or before June 7, 2019.
Dated at Toronto this 16th day of May 2019.
“Patrick Kelly” ____
Patrick Kelly, Alternate Chair
“Carol Phillips”______
Carol Phillips, Member
“Carla Zabek”______
Carla Zabek, Member