Ontario Nurses' Association v. Central Community Care Access Centre, 2019 CanLII 86314

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

DECISION OF ALTERNATE CHAIR PATRICK KELLY, AND BOARD MEMBER CARLA ZABEK: SEPTEMBER 10, 2019

APPEARANCES: Jan Borovy appearing for the applicant; Michael Allen appearing for the respondents

1. These are applications brought by Ontario Nurses’ Association (“ONA” or “the Association”) under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”).

Background

2. The applications arise from ten Orders, dated December 18, 2015, by Review Officer Tiziana Isgro. The Orders determined that the ten respective respondents (“the Respondents” or “the Employers”) had not maintained pay equity since a restructuring of Community Care Access Centres (“CCACs”) in 2007 with the introduction of Local Health Integration Networks (“LHINs”) in the Province. The Orders required them to take certain steps toward maintenance of pay equity using the proxy method of comparison, including providing the Review Officer and ONA with all documentation and information upon which they relied to maintain pay equity. However, the Review Officer found that the employers were not required to negotiate pay equity maintenance with ONA.

3. Following the issue of the Orders, the employers unilaterally identified a Gender Neutral Comparison System (“GNCS”), gathered job information, analyzed the job information using the GNCS, and provisionally identified points and weightings to the job classes. All of this information was provided to ONA once the respondents completed their work.

4. ONA filed these applications in April 2016. The Association agrees with the Orders insofar as they found that the employers had not maintained pay equity since 2007. However, ONA disputes the Review Officer’s finding that the employers are not required to negotiate with the Association. ONA contends that, due to the restructuring and reorganization of bargaining units and the creation of new jobs, as well as changes in the work of the key female job classes, the employers must negotiate pay equity maintenance under section 7 of the Act with the Association, pursuant to the sale of business provisions in section 13.1 and the change of circumstance provisions in section 14.1. Indeed, ONA contends, the employers recognized their duty to bargain in good faith when, through their umbrella association – Ontario Association of Community Care Access Centres (“OACCAC”) – they allegedly engaged ONA in a bargaining process only to later withdraw from that process.

5. The Employers’ defense to the application is as follows. Maintenance of pay equity is governed by Part I of the Act, and under Part I there is no provision requiring an employer to bargain pay equity maintenance with its bargaining agent. Secondly, the obligations to bargain by an employer and a bargaining agent under Part II of the Act (in sections 14 and 14.1), as well as the sale of business provisions (in section 13.1), do not apply to the employers because of the exemptions contained in section 11 of the Act, and particularly subsection 11(3). Section 11 reads:

11. (1) This Part applies to all employers in the public sector, all employers in the private sector who, on the effective date, employ 100 or more employees and those employers in the private sector who post a notice under section 20.

Idem

(2) This Part does not apply to an employer who does not have employees on the effective date.

Same

(3) Despite subsection (2), sections 13.1, 14.1 and 14.2 apply to public sector employers that did not have employees on the effective date but that had employees on July 1, 1993.

6. The employers say they did not have employees on either the effective date or on July 1, 1993. Accordingly, no provision in Part II applies to them. Furthermore, the parties did not enter into an enforceable agreement to collaborate on the question of pay equity maintenance.

7. At the commencement of the hearing in these matters, the parties provided the Tribunal with an Agreed Statement of Facts (“the ASF”). It is appended to this decision as Appendix 1. They also adduced some additional brief oral evidence. We have distilled the ASF and the oral evidence in a recitation of the key facts below.

The Facts

8. The health care professionals represented by ONA in these applications are engaged in essentially one of two functions: one group of professionals (by far, the largest of the two) assess patient care needs and develop plans of care based on those needs for members of the public in their homes (the hands-on patient care itself is generally provided by third party agencies). This service is referred to as “home care”. The other category of professionals are individuals who determine a member of the public’s eligibility for placement into a government funded long term care facility, and who manage the wait list related to those placements. This service is known as “long term care placement”. We shall refer to these services collectively as “the Services”.

9. The Services have been provided in Ontario for many decades. The model under which the Services have been delivered, however, has varied and undergone complicated and fundamental reorganization, once in 1996, again in 2007 and most recently in 2017. Without oversimplifying, we shall endeavour to set out an abridged summary of these developments below.

The pre-1996 Model of Home Care and Long Term Care Placement

10. Before 1996, the Services were provided throughout Ontario by 74 home care and long term care placement programs operated by various entities. Home care was generally carried out by professional staff known then as Case Managers (generally with Registered Nurse designation) employed by Public Health Units organized within municipal government.¹ Long term care placement was similarly delivered by professionals typically referred to as Placement Coordinators (again normally with Registered Nurse qualifications) through agencies of municipal government and non-profit organizations.

11. ONA was the bargaining agent in a number of the workplaces employing Case Managers and Placement Coordinators, and ONA negotiated a number of “job-to-job” pay equity plans prior to 1993 in those workplaces where the employing entity was subject to Part II of the Act. Some of those pay equity plans identified male job class comparators for the Case Managers (and other female job classes) in such classifications as Epidemiologist, Public Health Inspector, Assistant Director of Inspection, and Assistant Director, Environmental Health.

12. ONA also negotiated proxy pay plans under Part III of the Act in circumstances where workplaces were entirely female-dominated and in which no appropriate male comparators existed. One such example was a central proxy pay equity plan negotiated with Victoria Order of Nurses in 1995 covering several VON branches, using a hospital RN as the proxy comparator.

The Transition to the CCAC Model, 1996 to 2007

13. Between 1996 and 1998, pursuant to the Long Term Care Act 1994 the existing 74 home care and placement coordination programs were merged into a network of 43 CCACs² spanning the entire Province. Although some of the CCACs provided the Services directly, most CCACs functioned primarily as purchasers and coordinators of direct service competed for by non-profit and for-profit organizations within the geographic area served by the CCAC.

14. Under this new regulatory scheme, the assets and staff (as well as their terms and conditions of employment some of which were codified in collective agreements) from the predecessor entities flowed through to the new CCACs. So, for example, the home care program, including the Case Manager classification under ONA’s collective agreement at the Wellington-Dufferin-Guelph Health Unit was transferred to the Wellington-Dufferin CCAC; and, by way of another example, the Services at Brant County Public Health Unit and Brant Victorian Order of Nurses respectively, including the Case Managers and Placement Coordinators represented by ONA at those agencies, were transferred to Brant CCAC. These and other transfers constituted a sale of business within the meaning of the Labour Relations Act as it then was. This meant that the CCACs became bound to the collective agreements of the predecessor agencies.

15. The two Case Managers who testified on behalf of ONA in this matter essentially said that their terms and conditions of work, their work functions and their caseloads did not change substantially as a result of the transition to their respective CCACs.³

16. Following the transfers to the CCACs, ONA took steps in the pay equity process to address the elimination of male job class comparators (which originated with the predecessor agencies but did not transfer to the CCACs). Applications and Notices of Inability to Achieve Pay Equity were filed with the Pay Equity Commission. In responding to these initiating documents some CCACs and/or Review Services Officers identified the merger or sale of business as the basis for the involvement of the Pay Equity Commission. Following Orders from Review Services that the CCACs under those Orders were seeking employers for purposes of the proxy method of pay equity, ONA and those CCACs proceeded to negotiate proxy pay equity plans.

The Reorganization of the CCACs to align with Local Health Integration Networks

17. In 2006, the Legislature created 14 Local Health Integration Networks (“LHINs”) under the Local Health System Integration Act, 2006, to allocate and provide funding to health service providers, including CCACs, according to provincial priorities. Furthermore, legislative changes were enacted to allow for the amalgamation or dissolution of CCACs, and to deal with their assets. What emerged was the reorganization of 42 CCACs into 14 CCACs that aligned with the geographical boundaries of the 14 LHINs, effective January 1, 2007.

18. The reorganization of the CCACs prompted a number of applications under the Public Sector Labour Relations Transition Act (“PSLRTA”) before the Ontario Labour Relations Board (“the OLRB”). Among other things, PSLRTA applies to a “health services integration” that affects the structure or existence of one or more employers or that affects the provision of programs, services or functions by the employers, including but not limited to an integration that involves a dissolution, amalgamation, division, rationalization, consolidation, transfer, merger, commencement or discontinuance. ONA was an active participant in several of those proceedings in which bargaining unit configurations and bargaining agent representation that existed in the 42 CCACs changed to one degree or another. In those proceedings, no one contested that the reorganization of the CCACs constituted health services integrations.

19. Generally, though not always, the OLRB established a bargaining unit configuration for the reorganized CCACs under the PSLRTA proceedings consisting of a professional and a clerical unit, and directed run-off votes to determine the bargaining agents for each of the units. Through the PSLRTA process, ONA ultimately represented bargaining units at 10 (all of the respondents in this proceeding) of the 14 reorganized CCACs. One of ONA’s units was comprised of technical-clerical employees. All of the ten workplaces were the result of a merging of two or more predecessor CCACs.

20. Based on the testimony of Mathers, the reorganization of the CCACs did not result in any immediate changes of substance in the day-to-day work of her position as Case Manager, and there was no evidence to suggest that her experience was atypical of other Case Managers. In the case of Hughes, another Case Manager, she was faced with a choice of staying with the Waterloo Wellington CCAC or moving to Wellington Dufferin CCAC, and she chose the latter. However, again, like Mathers, she continued to do the same assessments and job duties as before the reorganization, with the same terms and conditions as existed under the collective agreement that had applied to at her prior CCAC.

Collective Bargaining and Pay Equity Developments Post PSLRTA

21. In the aftermath of the PSLRTA process, collective bargaining took place following the expiry of most of the collective agreements on March 31, 2007. In respect of the reorganized CCACs where ONA had bargaining rights, the Respondents and ONA first negotiated “composite” collective agreements (combining collective agreements that had governed the CCAC predecessors) until such time as new collective agreements could be bargained. ONA aimed ultimately to arrive at a “harmonized” collective agreement in each workplace, endeavouring to adopt the superior provisions from among the predecessor collective agreements. By 2009, the process of post-PSLRTA collective bargaining was complete.⁴

22. ONA next moved in 2010 to deal with pay equity in the reorganized CCACs. At that stage, it would appear that none of the Respondents had turned their minds to any potential pay equity implications arising from the reorganization of CCACs.

23. In 2010, ONA’s Labour Relations Officers wrote to the ten Employers to advise that ONA was of the view, under s. 14.1 of the Pay Equity Act that the previous pay equity plans were no longer appropriate due to changed circumstances. ONA requested that each CCAC enter into negotiations with ONA regarding pay equity. By way of example, Labour Relations Officer Catherine Iles-Peck wrote the following passage in a letter to the Director of Human Resources for Erie St. Clair CCAC, which consisted of three predecessor CCACs:

We write regarding the issue of pay equity for our bargaining unit members at the Erie St. Clair CCAC.

Under s. 7 of the Pay Equity Act, employers are required to establish and maintain compensation practices that provide for pay equity. The wage rates at the various sites of the Erie St. Clair CCAC incorporated pay equity adjustments that were initially required to establish pay equity as set out in the individual plans for the former CCACs in Windsor, Sarnia and Chatham. However, it is our concern that because of the changes circumstances with the merger of the previous three (3) CCACs into the Erie St. Clair CCAC effective January 1, 2007, wage gaps have re-emerged with the result that pay equity is not being maintained. For this reason, in accordance with s. 14.1 of the Pay Equity Act, we are providing written notice that we are of the view that the previous pay equity plans are no longer appropriate and request that you enter into negotiations concerning the maintenance of pay equity.

We note that this obligation to negotiate with respect to pay equity maintenance is distinct from the duty to bargain with respect to the renewal of the collective agreement and this notice is being provided separately from that process.

24. Responses were received from some of the Employers, including a letter dated June 7, 2010 to ONA Labour Relations Officer Pat Gibson (“Gibson”) from Ms. Rebecca Norris (“Norris”), Senior Manager of Human Resources and Organizational Development for the South East CCAC. Norris advised that the CCAC intended to proceed with developing pay equity plans as soon as possible and that it recognized its obligation to do so. She further advised Gibson that the CCAC was seeking qualified vendors and would be in contact with the Union once a provider was in place and they were prepared to begin the process.

25. In any event, as a result of the ONA notices to bargain pay equity, the Employers’ association, the OACCAC, and ONA entered into discussions. According to Corbet, a pay equity subcommittee of the OACCAC’s larger Human Resources and Organizational Development was set up to deal specifically with pay equity issues, including discussions with ONA regarding a centralized Gender Neutral Comparison System (“GNCS”). Corbett acted in the role of consultant on the subcommittee, giving advice to the CCAC representatives. The ONA letters requesting the CCACs to negotiate pay equity were discussed at one or more of these subcommittee meetings, and Corbett was asked by the CCAC representatives on the subcommittee to engage ONA on their behalf in exploratory talks about pay equity, particularly concerning a gender neutral comparison system, with the realization that each reorganized CCAC might ultimately have to negotiate pay equity individually with ONA.

26. Under cross examination, Corbet testified that the subcommittee was aware of the existing proxy plans and had had general discussions about the status of these existing proxy plans. Ms. Corbet further testified under cross examination that the CCACs were trying to collect the information that ONA had requested including the previous pay equity plans "from predecessor CCACs". It was her understanding that the reorganized CCACs were required to review the predecessor proxy plans. In fact, Ms. Corbet understood that the predecessor proxy plans were the "deemed approved plans" that still applied to the reorganized CCACs.

27. On November 29, 2010 Shelley Moreau, Senior Director of Human Resources and Organizational Development for the North East CCAC confirmed with ONA’s Labour Relations Officer Angele Caporicci that discussions would be had at a provincial level regarding the selection of a GNCS and that she anticipated moving forward with the Union to evaluate positions, agree on appropriate comparators, and put a pay equity plan in place.

28. In her testimony, Corbet indicated that Ms. Moreau had “jumped the gun” by stating that there would be discussions at a provincial level as to the selection of an appropriate GNCS, although she acknowledged that the subcommittee she chaired had already concluded that a GNCS was a key element for the implementation of pay equity across the CCACs.

29. Representatives of ONA, including Mathers, and OACCAC, including Corbett, met face to face regarding pay equity for the first time on December 17, 2010.

30. Essentially two subjects were discussed at the December 17, 2010 meeting. One subject was a gender neutral comparison system (“GNCS”). In this regard, Corbett asked ONA to consider a job evaluation system (“JES”) developed by Deloitte for the CCACs’ management and non-union personnel. ONA conveyed some initial misgivings that the Deloitte JES might not sufficiently capture the work of its members, but agreed to give it consideration, and asked for a copy of the JES and any accompanying descriptors of the evaluation factors used by the Deloitte JES. Corbett provided the Deloitte JES to ONA in early January 2011, but the factor descriptors were not included.

31. The second item of substance discussed at the December 17 meeting was Terms of Reference for the pay equity process. Corbett was interested in that, and ONA indicated it would undertake to provide a proposed draft at a later date. However, no Terms of Reference were ever formally proposed by either party or discussed thereafter.

32. ONA and OACCAC arranged to meet again on April 26, 2011. By that time, ONA had the Deloitte JES, and OACCAC had hired a pay equity consultant on behalf of the respondents. Very little evidence about the content of the meeting emerged in the course of the hearing. There may have been further discussion regarding the Deloitte JES. ONA asked for a copy of the questionnaire for the Deloitte JES, and although it would appear Corbett committed to providing it, the questionnaire was never disclosed to ONA.

33. The last meeting on the subject of pay equity with OACCAC involved not only ONA but Ontario Public Service Employees’ Union and Canadian Union of Public Employees both of whom had bargaining rights at some of the 14 reorganized CCACs. That meeting occurred on October 2, 2012. Corbett told the assembled group that, in light of a decision of a Review Officer regarding a pay equity dispute at Erie CCAC (where ONA had no bargaining rights), and in light of a case being heard at the time at the Pay Equity Hearings Tribunal involving the issue of maintenance of proxy pay equity plans in nursing homes, the CCACs were taking the position that they were not obligated to negotiate new pay equity plans with their respective trade unions.

34. At no point in the talks between OACCAC and ONA did Corbett ever claim any authority to bind the CCACs. In fact, Mathers testified that she understood that Corbett had no such authority in that regard.

35. Notwithstanding Corbet’s statement during the October 2 meeting that the CCACs were not obligated to bargain new pay equity plans with ONA, in November 2012, ONA wrote to each of the respondents and stated the view that a new pay equity plan was indeed required for each Employer and that ONA wished to enter into negotiations. In December 2012, each respondent replied that they disagreed. Six months later, ONA filed applications with Review Services, which resulted in the Notice of Decision described at the outset of this decision.

36. Thereafter, the respondents proceeded unilaterally with pay equity maintenance activities, including arranging the completion of job content questionnaires and completing evaluations of job classes. There is no claim by ONA in this proceeding that the respondents have failed to comply with the Notice of Decision.

37. One final note on the facts. Commencing in May 2017, all CCAC employees were transferred to the LHINs pursuant to legislative amendments. Home and community care services and long-term care home placement coordination services are now overseen, planned, integrated and funded by the LHINs.

The Positions of the Parties

38. The parties both provided very lengthy and thoughtful written and oral submissions outlining their respective positions, for which we are grateful. On May 16, 2019, we issued an interim decision inviting further submissions concerning a recent decision of the Ontario Superior court of Justice (Divisional Court)⁵. What follows below is a summary of the highlights of the parties’ arguments, including their submissions in response to our decision of May 16, 2019.

ONA’S Position

39. ONA requests an order that the Respondents are required to negotiate pay equity with ONA, pursuant to s. 11(3), 13.1, 13.2 and 1.1 of the Pay Equity Act (the “Act”) from 2007 to 2017. In the alternative, should the Tribunal find that the Respondents are Part I employers, ONA submits that the Respondents are required to demonstrate pay equity compliance through new proxy pay equity plans.

40. ONA submits that the Respondents failed to maintain pay equity for job classes which existed prior to the amalgamation of the CCACs with the LHINs in 2006, and failed to achieve pay equity for new job classes which were created following the transition. ONA takes the position that the Respondents were required to return to the original proxy comparators for pay equity maintenance purposes, and engage ONA in negotiations after it gave notice to bargain.

41. It is also ONA’s position that since the proxy plans between ONA and the 43 predecessor CCACs were entered into, job values have changed significantly, in particular for the key female job class of Case Manager/Care Coordinator. ONA submits that these changes have resulted in an increased value for the female job classes since the proxy plans were developed, and that these positions should be evaluated jointly by the parties for the purposes of a pay equity determination.

42. ONA submits that the legislative history of the Act informs its legislative intent, and that the introduction of amendments to the Act, in particular the sale of business and changed circumstance provisions, came about in recognition that the benefits of pay equity, once obtained by employees, ought not to be imperiled or lost by workplace reorganization. ONA contends that these provisions were intended to apply to situations such as the CCAC-LHIN amalgamation in 2006, to ensure a seamless transition in pay equity rights from the 42 CCACs to the 14 CCACs.

43. The essence of ONA’s legal argument is two-fold. First, ONA states that a narrow technical approach to the Act is contrary to well-established principles of statutory interpretation. Second, ONA submits that the bargaining agent’s substantive role and obligations under the Act must be interpreted in a manner consistent both with the purposes of the Act and with s. 2(d) of the Charter of Rights and Freedoms, and that takes into account principles found in the Labour Relations Act, 1995 and jurisprudence, and must achieve the purposes of the Act itself.

44. Beginning with ONA’s first argument relating to statutory interpretation, ONA states that principles to be applied in interpreting the Act include a broad and liberal interpretive approach as mandated by s. 64 of the Legislation Act. The intention of the legislation is to be gleaned from the words used in the provision at issue within the context of the overall legislation. Courts and tribunals should choose interpretations that advance the remedial purpose of human rights legislation.

45. ONA further submits that sections 13.1, 13.2 and 14.1 of the Act, enacted as amendments to the Act for the first time in 1993, constitute critical protective provisions for employees in female job classes and their bargaining agents. Nothing in the legislative history of these provisions demonstrates any intent by the Legislature to limit the scope of the protections in the sale of business or the changed circumstance provisions. ONA points out, in fact, that subsection 13.1 of the Act, introduced in 1997, expressly classifies occurrences (including a health services integration) under PSLRTA as constituting a sale of business; and section 13.2 of the Act, introduced in 2006, makes clear that health services integrations under PSLRTA involving health service providers under LHSIA, including the CCACs, constitute a sale of business within the meaning of section 13.1 of the Act. Indeed, ONA submits, the parties in the 1996/97 transition to the CCAC model of health care, acted as if a sale of business had occurred: each CCAC applied to the Pay Equity Commission for a proxy employer declaration, and each CCAC engaged with their trade unions, including ONA, to negotiate proxy pay equity plans. Thus, there is no reason to arrive at a different conclusion when the CCACs were reorganized in 2006 and 2007. In fact, section 13.2 makes it abundantly clear that the reorganization (via amalgamation) of the CCACs pursuant to LHSIA constituted a sale of business. It is the substance and not the form of the transaction that is determinative. Absent language to the contrary, ONA argues that the significant right for employees to union representation continued in 2007, and that the original employers who provided home care services were in existence as of July 1, 1993, and were indisputably Part II employers. Even though the amalgamated CCACs did not have employees on that date, the fact is that the predecessor employers did, and accordingly, the Respondents are not immunized from the sale of business provisions.

46. ONA states that s. 11(3) must be read in the context of legislative intent, and cannot be read as limiting the obligation to protect pay equity rights during the sale of a workplace. Without an explicit carve-out to limit access to the sale of business and changed circumstances provisions, ONA submits that the presumption of coherence in respect of the provision of prospective rights must be applied by the Tribunal, as there is no indication in the amending Bill to suggest that s. 11(3) was intended to limit the application of the protective provisions of the Act.

47. ONA says that the unique facts of this case, including that the reorganization of the CCACs in 2007 via the LHSIA involved local health integrations under the PSLRTA, and resulted in the reconfiguration of ONA’s bargaining units, distinguishes this matter from other decisions of the Tribunal such as Saydat Hospitality Inc., 2010 CanLII 63607 (ON PEHT), St. Joseph’s Villa, 4 PER 33 (ON PEHT); Ottawa Board of Education No. 2 (1996), 7 P.E.R. 9; and Oakwood Retirement Communities v. SEIU L. 1, 2010 CanLII 76245 (ON PEHT).

48. Finally, ONA submits that the Tribunal must conduct a statutory interpretation that: accords with the freedom of association under s. 2 (d) of the Charters of Rights and Freedoms; takes into account the sale of business provisions of the Labour Relations Act, 1995 and OLRB jurisprudence that applies a broad and liberal interpretation to the concept of sale of a business; and achieves the purposes of the Act itself. ONA contends that the Act should not be interpreted in a manner that enfeebles the role of the bargaining agent in the enforcement of pay equity rights. ONA concludes that by analyzing the applicable provisions of the Act broadly and liberally, informed by both the OLRB jurisprudence and Charter values, the Tribunal will conclude that bargaining agents under the Act must be accorded a robust and meaningful role in the maintenance of pay equity, including the right to negotiate.

49. With respect to the Divisional Court’s recent decision in Ontario Nurses’ Association V. Participating Nursing Homes, 2019 ONSC 2168 (“the ONA Decision”), ONA submits that the Court’s analysis concerning Charter values in that case (discussed in greater detail in paragraphs 84 to 88 below) ought to be applied in this one. Furthermore, ONA contends that the Tribunal ought to follow the Court’s direction in the ONA Decision to maintain pay equity of the proxy pay equity plans by following the procedures the Tribunal establishes.

The Position of the Respondents

50. The Respondents submit that there is only one key issue in dispute in this proceeding: whether they were required to negotiate with the Applicant to maintain pay equity, pursuant to sections 13.1 and 14.1 of the Act.

51. The Respondents’ argument is two-fold. First, they submit that there is no statutory obligation to enter into negotiations with the bargaining agent, or agree to a joint approach, with respect to pay equity maintenance. Once pay equity is achieved, unless the parties have agreed otherwise, the obligation to maintain pay equity arises under Part I of the Act. As the Respondents then state in their Closing Submissions at para 18, upon achievement of pay equity, the provisions of sections 13.1 and 14.1 do not apply at all to the pay equity maintenance requirement under the Act, even if Part II applies to the employer.

52. Alternatively, the Respondents submit that Part II does not apply to them in any event. They say they are Part I employers, by virtue of the exemptions from Part II in section 11 (and in particular subsection 11(3)) of the Act, which reads:

(3) Despite subsection (2), sections 13.1, 14.1 and 14.2 apply to public sector employers that did not have employees on the effective date but that had employees on July 1, 1993. 1994, c. 27, s. 121 (1).

53. Furthermore, the Respondents argue, Part I employers are not subject to Part II either in respect of achieving or maintaining pay equity, and Part I employers are not required to collaborate with a trade union when conducting a pay equity analysis, though the employer must make full disclosure to the trade union concerning how pay equity has been achieved and how pay equity has been maintained.

54. The Respondents argue that subsection 11(3) is unambiguous, and that, as a result, none of the Respondents are subject to Part II, given their creation in 2007 and the creation of their predecessor CCACs in 1996 at the earliest. The Respondents also submit that section 13.2, upon which ONA relies, refers only to transfers under section 32 of the LHSIA and that section 32 does not apply to what occurred in 2007 with the reorganization of the then existing 42 CCACs.

55. The Respondents argue that this is a case for the application of the implied exclusionary rule of construction in the analysis of section 11. As explained in Sullivan on the Construction of Statutes (5th ed.) (Butterworth 2008) at page 244:

An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular things within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied…

56. Neither section 13.2 nor subsection 13.1 (4.1) of the Act are listed as exceptions to the rule in subsections 11(2) or (3). Therefore, the Respondents say, by necessary implication it cannot have been the intention of the Legislature to have section 13.2 and subsection 13.1(4) of the Act apply to entities such as the Respondents who meet the criteria for exemption from every provision of Part II on a proper reading of both subsections 11(2) and (3) of the Act.

57. With respect to the Charter values argument put forth by ONA, the Respondents say: first, that as there is no ambiguity in the language of the statute under consideration in this matter, there is no need or requirement to apply Charter values in the interpretation of those provisions; and second, that Charter values do not apply to the panel’s analysis of this case as there is no tension between redressing a social ill (gender bias in compensation), which is the statutory purpose of the Act, and the Charter’s freedom of association. Regarding the recent ONA Decision issued by the Divisional Court (see paragraph 38 and footnote 5 above), the Respondents say that its true precedential value is that it requires the Tribunal to apply a yet to be determined set of rules for proxy method maintenance. It is not, in the Respondents’ submission, compelling authority for the law on the application of Charter values to administrative decision-making. This case does not involve the exercise of the Tribunal’s discretion, and therefore since there is no ambiguity in the language of the Act, the Tribunal ought not to apply a Charter values analysis in arriving at its conclusions in this matter.

58. The objective of the Act, say the Respondents, is to redress, but not necessarily eliminate, gender discrimination in compensation. The Act seeks to counter the effects of discrimination. The Respondents submit that it is not the purpose of the Act to foster a collaborative approach to pay equity maintenance, and that it is thus perfectly consistent with the stated legislative purpose to set limits on the subjects of negotiation between employers and trade unions. It is not appropriate in the Respondents’ submission to give an expansive reading to provisions of the Act where nothing in the statutory language, the context of that language within the statute as a whole, and the statutory purpose demands such an interpretation. In any event, the freedom of association is not impaired simply because the bargaining agent does not have a direct negotiating role in maintaining pay equity. Trade unions still have a role to play. Every aspect of the maintenance exercise is subject to monitoring by the bargaining agent and to challenge by the bargaining agent through the enforcement provisions under Part IV of the Act.

59. While the Respondents do not contest that the Act is remedial in nature, and ought generally to be given a broad and liberal construction, that does not include reading into the statute a right of the bargaining agent to negotiate pay equity maintenance in the absence of plain and clear language to that effect in Part I of the Act. The Respondents submit that, having regard to the caution expressed by the Supreme Court of Canada in New Brunswick (Human Rights Commission) v. Potash Corp, 2008 SCC 45, [2008] 2 SCR 604 and Canada (Human Rights Commission) & Mowat v. AG of Canada, [2011] 3 SCR it is not appropriate to apply liberal and expansive readings of legislation that conflict with the text, context, and purpose of the legislative provision under review.

60. The Respondents contend that consistency between statutes is vital, referring to R. v. Ulybel Enterprises, 2001 SCC 56, [2001] 2 S.C.R. 867, where Justice Iacobucci discussed the importance of harmony, coherence and consistency at para 27. The Respondents suggest that given the number of Ontario statutes which deal with workplace rights, the Legislature has assigned specific and limited roles to trade unions. If the Legislature intended a broader role for trade unions in maintenance and in respect of Part I employers such as the Respondents, the Respondents submit that this would have been provided in the Act itself.

61. With respect to the discussions between ONA and OACCAC that took place over the span of less than a year commencing in December 2011, the Respondents do not agree that the parties made an enforceable agreement to negotiate maintenance or changed circumstance within the meaning of the Act. They simply explored the possibility of a collaborative approach on the selection of a GNCS. Neither side treated the discussions with any air of urgency. Ultimately, and before any substantive items of agreement were resolved (including the establishment of a dispute resolution mechanism), the Respondents determined that they were not obligated to negotiate amended pay equity plans or maintenance of the existing plans, and they declined to engage ONA further directly in such talks.

Analysis and Conclusions

62. The parties framed the question to be determined in this proceeding at paragraph 17 of their agreed statement of facts. Paragraph 17 reads:

The central question in this application for the Tribunal to determine is whether the Respondents are required to negotiate pay equity maintenance with the Union upon the Union’s request pursuant to sections 11.3, 13.1 and 14.1 of the Act. The period of pay equity liabilities, if any, in this dispute is January 1, 2007 to May 10, 2017, though later than May 10, 2017 for some of the Respondents based on the date they were transitioned in the Local Health Integration Networks (LHINs).

63. We accept generally ONA’s argument concerning the principles to be applied in the interpretation of the Act. The Act’s focus is on gender discrimination in compensation; it is thus human rights legislation, and as such, is to be given a broad, liberal and purposive interpretation guided by the plain meaning of the words in the statute. The rights bestowed under the Act ought not to be minimized or their impact weakened, but rather given full recognition and effect. The sale of business provisions and the changed circumstance provisions in the Act bring a prospective application of protective rights, and should be interpreted generously. That being said, the Tribunal must give effect to the intention of the Legislature having regard to the language of the Act.

64. The provisions of the Act relevant to this matter are as follows:

1. (1) In this Act,

“bargaining agent” means a trade union as defined in the Labour Relations Act that has the status of exclusive bargaining agent under that Act in respect of any bargaining unit or units in an establishment and includes an organization representing employees to whom this Act applies where such organization has exclusive bargaining rights under any other Act in respect of such employees;

2. (3) Despite the fact that the employees of two or more employers are considered to be one establishment under subsection (1) or (2), each employer is responsible for implementing and maintaining the pay equity plan with respect to the employer’s employees. R.S.O. 1990, c. P.7, s. 2.

3. (1) The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.

4. (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).

7.1 (1) Every employer to whom Part III applies and any other employer who is directed to do so by the Pay Equity Office shall post in the employer’s workplace a notice setting out,

(a) the employer’s obligation to establish and maintain compensation practices that provide for pay equity; and

(b) the manner in which an employee may file a complaint or objection under this Act.

Language

(2) The notice shall be in English and the language other than English that is understood by the greatest number of employees in the workplace.

Form of notice

(3) The notice shall be in a form made available to employers by the Pay Equity Office.

8. (5) The requirement that an employer maintain pay equity for a female job class is subject to such limitations as may be prescribed in the regulations.

9. (1) This Part applies to all employers in the public sector, all employers in the private sector who, on the effective date, employ 100 or more employees and those employers in the private sector who post a notice under section 20.

Idem

(2) This Part does not apply to an employer who does not have employees on the effective date.

Same

(3) Despite subsection (2), sections 13.1, 14.1 and 14.2 apply to public sector employers that did not have employees on the effective date but that had employees on July 1, 1993.

13.1 (1) If an employer who is bound by a pay equity plan sells a business, the purchaser shall make any compensation adjustments that were to be made under the plan in respect of those positions in the business that are maintained by the purchaser and shall do so on the date on which the adjustments were to be made under the plan.

Plan no longer appropriate

(2) If, because of the sale, the seller’s plan or the purchaser’s plan is no longer appropriate, the seller or the purchaser, as the case may be, shall,

(a) in the case of employees represented by a bargaining agent, enter into negotiations with a view to agreeing on a new plan; and

(b) in the case of employees not represented by a bargaining agent, prepare a new plan.

Same

(3) Clause 14 (2) (a), subsections 14.1 (1) to (6) and 14.2 (1) and (2) apply, with necessary modifications, to the negotiation or preparation of a new plan.

(4) Repealed: 1997, c. 21, s. 4 (1).

Application to certain events

(4.1) This section applies with respect to an occurrence described in sections 3 to 10 of the Public Sector Labour Relations Transition Act, 1997. For the purposes of this section, the occurrence shall be deemed to be the sale of a business, each of the predecessor employers shall be deemed to be a seller and the successor employer shall be deemed to be the purchaser.

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.

Non-bargaining unit plan

(5) If the employer is of the view that, because of changed circumstances in the establishment, the pay equity plan for that part of the establishment that is outside any bargaining unit is no longer appropriate, the employer may amend the plan and post in the workplace a copy of the amended plan with the amendments clearly indicated.

Same

(6) Subsection 15 (2) and subsections 15 (4) to (8) apply, with necessary modifications, in respect of an amended plan described in subsection (5).

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.

65. Sections 4(1) and 7, 11(1) and (2) have been the law since the Act’s inception in 1988. Sections 13.1 and 14.1 came later in Bill 102, which received Royal Assent on June 30, 1993.⁶ Subsection 11(3) was enacted the following year. Its referral to July 1, 1993 ties in with the timing of the coming into law of sections 13.1, 14.1 and 14.2.

66. We turn first to the application of section 11, which the respondents say exempts them from Part II of the Act. Section 11 of the Act has a three-part structure. The first part, in subsection 11(1), is the over-arching provision. It provides that three categories of employer, including public sector employers regardless of the number of employees employed or when they were employed, are subject to Part II of the Act.

67. The second part, subsection 11(2), provides a qualification of subsection 11(1). It effectively excludes from all of Part II any employer who “does not have employees on the effective date” i.e., January 1, 1988.

68. The third building block of section 11, with the introduction of subsection 11(3) in 1993, provides a qualification of subsection 11(2). It provides that, notwithstanding subsection 11(2), a portion of Part II does apply to public sector employers that did not employ employees on January 1, 1988, but did employ employees on July 1, 1993. The only portions of Part II that apply to public sector employers in such circumstances are the sale of business provisions in section 13.1 and the change of circumstance provisions in sections 14.1 and 14.2.

69. Subsection 11(3) requires unionized public sector employers who employed employees on July 1, 1993 (but not prior to July 1, 1993) to abide by sections 13.1 and 14.1⁷, and to enter into negotiations with their bargaining agents in the circumstances outlined in those provisions.

70. In our view subsection 11(3) was not designed to do what the Employers suggest, i.e. forever exempt public sector employers, such as the respondents, who did not even exist on July 1, 1993 from the effects of a post-July 1, 1993 sale of business or change in circumstance rendering a pay equity plan no longer appropriate. Section 11 simply clarifies that employers without employees at certain stages in the life of the Act (at its inception on January 1, 1988 and on the date of the first amendment to the Act, July 1, 1993) were not subject to Part II. The interpretation urged by the Respondents – that an employer without employees at those points in time are forever exempt from Part II - would defeat the rights of individuals who initially benefitted under the Act from the continued enjoyment of those benefits following a sale of business or where changed circumstances render the pay equity plan no longer appropriate. Indeed, the Respondents have conducted themselves in a manner that suggests they recognized that the pay equity plans of their predecessor CCACs continued to apply in the reorganized establishments and that the Employers were responsible for maintaining those pay equity plans. In short, the Respondents acted as though they were successor employers under section 13.1 by endeavouring to maintain the pay equity plans of the predecessor employers. Furthermore, the Respondents (through the CACCAC) initially met with ONA, albeit briefly, upon being served with a notice to bargain under subsection 14.1(1).

71. Ultimately, we find it unnecessary to decide whether the Employers’ argument concerning subsection 11(3) is correct. That is because we are persuaded by the Respondents’ primary position that they were not statutorily obligated to bargain pay equity maintenance with ONA, for the reasons that follow.

72. The purpose of the Act is, as subsection 4(1) expressly states, to redress systemic gender discrimination in compensation for work performed by employees in female job classes. As pointed out by the Ontario Superior Court of Justice (Divisional Court) in Canadian Union of Public Employees, Local 1999 v. Lakeridge Health Corp., 2012 ONSC 2051, [2012] O.J. No. 2541, the Act does not purport to entirely eradicate gender discrimination in compensation. Nor is the purpose of the Act to facilitate collaborative approaches by employers and trade unions to the maintenance of pay equity.

73. Having said that, we point out that the Act, under every Part, has always recognized the significant role of the bargaining agent in the pay equity process involving unionized employees, even before the inclusion of section 13.1 and 14.1 in 1993. For example, section 14 requires the employer and the bargaining agent to negotiate in good faith and endeavour to agree upon the GNCS and the pay equity plan that is to apply to the bargaining unit (s. 14(2)). In the course of the negotiation, the trade union has an equal say with the employer in whether the employer’s establishment consists of multiple divisions, and also with respect to the gender of any job class (s. 14(3)). A pay equity plan executed by the employer and the bargaining agent has the status of a deemed approved plan (s. 14(5)). Failing agreement on a pay equity plan, the trade union may complain to the Pay Equity Commission (s. 14(7) and s. 22)). Also, a bargaining agent named in a Review Officer’s Order has the right under the Act to bring an application before the Tribunal (s. 24(6)). Moreover, pursuant to section 7(2) of the Act which bars the trade union (and the employer) from bargaining or agreeing to compensation practices that would defeat the achievement or maintenance of pay equity, it is implicit that, in order to assess whether an employer is pay equity compliant, the bargaining agent is entitled to all relevant information from an employer regarding the steps taken to comply with the Act. Finally, by way of further example, a pay equity plan or a settlement to which a bargaining agent agrees binds all the employees to whom the pay equity plan or settlement applies (s. 13(9) and s. 25.1(3)).

74. Notwithstanding the significant part that trade unions play under the Act, the legislative scheme imposes certain duties and responsibilities solely on employers, even in unionized settings. For example, the employer alone is required to post pay equity documents in the workplace (s.7.1, 14(4), 16(3, s. 17(2), s. 21(7), s. 32(2)). In section 12, it is the employer tasked with making comparisons between job classes under the GNCS. And, the employer is responsible for paying pay equity adjustments (s.14(5), s. 16(5), s. 17(3), s. 21(10)).

75. The employer is also tasked under the statute with maintaining pay equity. The Act does not set out a definition of “maintenance”. However, there are four substantive references to the notion of maintaining pay equity in the following provisions of the Act: subsection 2(3), subsection 7(1), section 7.1 and subsection 8(5). These four provisions are all situated in Part I of the Act, meaning that they apply to all employers that are subject to the Act, including non-union, as well as organized, employers; the other Parts of the Act, which describe pay equity implementation and the three job comparison methodologies, do not indicate how pay equity is to be maintained. Subsection 2(3), dealing with combined establishments, provides that each employer in a combined establishment is responsible for “implementing and maintaining” the pay equity plan that applies to the particular employer’s employees. In subsection 7(1), the Act imposes upon the employer, and no other entity, the obligation to maintain compensation practices that provide for pay equity. Section 7.1 refers to an employer’s obligation to “establish and maintain” compensation practices that provide for pay equity. And subsection 8(5) speaks to the requirement of an employer to “maintain pay equity” for female job classes. The Act does not mention an express right of a bargaining agent to negotiate or give notice to negotiate the issue of maintaining pay equity or maintaining compensation practices.

76. Unlike pay equity maintenance, the Act does however expressly contemplate negotiation between Part II employers and bargaining agents on:

• a gender neutral comparison system (subsection 14(2)(a));
• a pay equity plan (subsection 14(2)(b));
• the composition of the employer’s establishment (subsection 14(3)(a));
• whether a job class is a male or a female job class (subsection 14(3)(b);
• an amended pay equity plan due to changed circumstances that render the initial pay equity plan no longer appropriate (subsection 14.1);
• a new pay equity plan following a sale of business if as a result of the sale the prior pay equity plan(s) is no longer appropriate; and
• a replacement schedule of compensation adjustments for achieving pay equity (subsection 13(7.2)).

The Act does not expressly confer any other right upon employers or bargaining agents to compel bargaining under the Act, although subsection 7(2) does contemplate that compensation practices may be the subject of bargaining and/or agreement between employers and bargaining agents. The question remains, were the respondents within their rights not to bargain pay equity maintenance?

77. This Tribunal has on one occasion suggested that section 14.1, which deals with changed circumstances, may give rise to an obligation to bargain pay equity maintenance. In Ottawa Board of Education v. Ontario Secondary School Teachers' Federation, 1996 CanLII 7947 (ON PEHT), the Tribunal was faced with the issue of the extent, if any, of a School Board’s obligation to bargain a pay equity plan with the Ontario Secondary School Teachers’ Federation (“OSSTF”) in circumstances where, prior to OSSTF obtaining bargaining rights, there were pre-existing pay equity plans in place, one of which was a non-union plan (which covered various job classes, including that of Education Assistants for whom OSSTF obtained bargaining rights), the other a plan negotiated with a predecessor trade union which applied to a bargaining unit of custodial, maintenance and cafeteria workers. OSSTF became the bargaining agent for the Educational Assistant in one bargaining unit, as well as for the pre-existing bargaining unit. Once certified, OSSTF served notice on the School Board that it wished to negotiate pay equity for both units. The School Board’s position was that it was not obligated to negotiate pay equity plans with the OSSTF, (although, for reasons that are not clear from the decision, it conceded that it was obligated to bargain pay equity maintenance). The Tribunal determined that the non-union pay equity plan was to be “split”, effectively carving out the Educational Assistants for purposes of their own pay equity plan, and that the parties were to bargain if either of them held the view that the pay equity plan for the Educational Assistants was no longer appropriate. However, the Tribunal stated that the School Board was not obligated to negotiate the existing pay plan for the custodial, maintenance and cafeteria workers merely because OSSTF had become the certified bargaining agent.

78. In the course of its decision, the Tribunal made observations at paragraph 18 about a link between section 7(2) and section 14.1 of the Act:

…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) provide 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.

79. At paragraph 19, the Tribunal wrote:

“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…

(emphasis added)

80. The issue before the Tribunal in the Ottawa Board of Education was not, as it is here, whether the parties were required to bargain pay equity maintenance. The issue was whether the employer had to bargain pay equity for the groups subsequently represented by the OSSTF in circumstances where the employer had previously developed/ negotiated pay equity plans. Thus, the above excerpts concerning pay equity maintenance are obiter. Moreover, the School Board in that case, unlike the Respondents in this proceeding, conceded that it was obligated to negotiate pay equity maintenance with the trade union. Accordingly, the Ottawa Board of Education decision is of limited value in the determination of this case. However, even if we felt compelled to follow the reasoning in that decision, there is no evidence here that the impact of on-going maintenance amounts to changed circumstances in the establishments of the respondents that renders the pay equity plans no longer appropriate. ONA’s rationale for issuing its notice to bargain to the respondents was its concern that possibly wage gaps had emerged since the 2007 reorganization of the CCACs, or that changes in job content had occurred since then which required re-evaluation of the female job classes. ONA, of course, was quite entitled to communicate those concerns to the Respondents, and in the absence of any action by them, to complain to the Pay Equity Commission that the Respondents were in breach of their obligation to maintain compensation practices that provide for pay equity. This fulfills the statutory role of the bargaining agent in matters of pay equity maintenance of ensuring the ongoing provision of pay equity following its achievement in the workplace. That is a significant function. However, it is not subject to mandatory bargaining, and we do not agree that interpreting the Act in this way enfeebles the bargaining agent or deprives it of recourse where the employer fails to meet its obligation to maintain pay equity.

81. This brings us to a consideration of the Charter values argument advanced by ONA and opposed by the Employers. In the ONA Decision recently issued by the Divisional Court (see paragraph 38, footnote 5 above), the Court disagreed with the Tribunal’s determination in Ontario Nurses’ Association v Participating Nursing Homes, 2016 Can LII 2675 (ON PEHT) that, unless there is an ambiguity in the legislative language at issue, Charter values are not to be considered. The Court stated that Charter values can and must be considered, citing paragraph 16 of R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612; 2014 SCC 28, which reads:

[16]Nor, with respect, is Mr. Clarke assisted by Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, which was referred to by the Alberta Court of Appeal in Serdyuk. Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.

82. The Court in the ONA Decision said that, absent a consideration of Charter values (in respect of the Charter’s equality protection), the Tribunal concluded unreasonably that it is possible to maintain pay equity in female dominated workplaces without continued resort to deemed male comparators. In the Court’s view, the Tribunal failed to give effect as fully as possible to the equality protection at stake in light of the Act’s objectives to redress pay discrimination against women and to ensure that the discrimination does not re-emerge.

83. The issues in the ONA Decision were decided in the context of a dispute as to whether the employer failed to maintain pay equity under the proxy method of comparison. That is not the nature of the dispute in these matters. Here, we are concerned with the assertion by ONA that the Act confers upon bargaining agents a statutory right to bargain pay equity maintenance. In our view, the question posed in this litigation does not involve in any way the exercise of a discretion conferred upon the Tribunal by the Act or any other statute. Rather, our task is to determine if the language of the Act supports either party’s interpretation. If we were to find that the provisions of the Act give rise to an ambiguity, then a Charter values analysis would be appropriately utilized in order to resolve it.

84. Two brief illustrations shed light on what it means to exercise a statutory discretion based on Charter values. The first is Doré v. Barreau du Québec, [2012] 1 SCR 395, 2012 SCC 12, the Disciplinary Council of the Barreau du Quebec (“the Council”) was faced with determining if an intemperate letter from a lawyer to the presiding judge in a trial involving the lawyer met the standard of conduct set out in article 2.03 of the Code of ethics of advocates, namely whether the letter could be said to “bear the stamp of objectivity, moderation and dignity” within the meaning of article 2.03. The Council rejected the lawyer’s argument that article 2.03 violated his freedom of expression under the Charter, finding that the limitation imposed by article 2.03 on freedom of expression was reasonable under section 1 of the Charter. The Council reprimanded the lawyer and suspended him from practice for 21 days. The lawyer’s appeal to the Tribunal des professions failed, as did his subsequent judicial review application to the Superior Court of Quebec. At the Quebec Court of Appeal, the Court applied section 1 of the Charter and upheld the reprimand (the lawyer did not appeal the suspension). The matter proceeded on appeal to the Supreme Court of Canada (“SCC”), where the SCC arrived at the same conclusion as the Quebec Court of Appeal, but using a different analysis. The SCC determined that the determination under article 2.03 involved the application of statutory discretion, and that therefore it was not appropriate to analyze the issue through the lens of section 1 of the Charter. Rather, the SCC observed, administrative discretion must be exercised in light of constitutional guarantees and the values reflected by those constitutional guarantees. The SCC was satisfied that the Council’s decision to reprimand the lawyer represented a proportional balancing of the lawyer’s right of expression with the statutory objective in article 2.03.

85. The second example is Loyola High School v. Quebec (Attorney General), [2015] 1 SCR 613, 2015 SCC 12. In that matter, a Catholic high school (“Loyola”) sought an exemption from Quebec’s Minister of Education, Recreation and Sports (“the Minister”) from a provincially mandated, three-tiered program that taught about the beliefs and ethics of different world religions from a neutral and objective perspective. Under the regulatory scheme applicable to the program the Minister had the authority to grant an exemption from the program if the proposed alternative program advanced by an applicant is deemed to be “equivalent”. The Minister determined that the high school’s alternative program – which initially sought to teach all three tiers of the program from a Catholic perspective only - was not equivalent, and declined to grant an exemption. Loyola brought an application for judicial review, and the Quebec Superior Court determined that the Minister’s decision violated Loyola’s Charter freedom of religion. On appeal, the Quebec Court of Appeal found no breach of the freedom of religion, and determined that the Minister exercised his discretion reasonably. Before the SCC on appeal, Loyola narrowed its request for an exemption to teaching only the ethics portion of the program from a Catholic perspective, but the Minister continued to take the position that Loyola had to teach the entire program in a neutral manner. All seven of the SCC Justices sided with Loyola, but the four-person majority did so using the approach in the Doré decision, applying a framework for reviewing discretionary administrative decisions that engage the protections of the Charter. The majority determined that the Minister’s refusal to grant the exemption did not reflect a proportionate balance between the objectives of promoting tolerance and respect for difference as set out in the mandated curriculum, and the religious freedom of the members of the Loyola community.

86. The Divisional Court in the ONA Decision appears to take the view that a Charter values analysis is to be utilized in all cases of administrative decision making, regardless of whether the decision involves the exercise of discretion or resolution of an ambiguity in the language of the statute. This seems to suggest that in interpreting the Act, the Tribunal is exercising a statutory discretion, and that that discretion must be informed by Charter values even where no party asserts that the Act violates the Charter. The Court further says in the decision that the test to apply in a Charter values analysis involves answering two questions: (i) does an interpretation of the Act that finds ONA does not have a right to bargain maintenance place limits on the Charter’s freedom of association; and (ii) if so, does such an interpretation reflect a proportionate balancing of the Charter protection in light of the particular statutory mandate?

87. Assuming we have read the Court’s analysis in the ONA Decision correctly, and that we are bound to apply that analysis in the circumstances of this case, we make the following observations. In respect of the first question to be answered, in our view, an interpretation of the Act finding that bargaining agents do not have a right to bargain pay equity maintenance does not limit the freedom of association. Trade unions are entitled under the Act to bargain the steps necessary to achieve a pay equity plan, and to bargain amended pay equity plans (within the parameters established in subsection 14.1(1) of the Act). The bargaining agent also has a role to play under the Act in maintenance, an implicit monitoring role under section 7(2); as well the bargaining agent may exercise a right under the Act to make a complaint on behalf of its members to the Pay Equity Commission, and an application to the Tribunal, in the event of any contravention of the employer’s obligation to maintain pay equity. This is roughly analogous a trade union’s normal collective bargaining role that sees it negotiating the terms of a collective agreement, and the ensuing responsibility of the trade union to monitor the collective agreement for compliance and file grievances for the breaches thereof. The freedom of association encompasses much more than just face-to-face bargaining, although that is clearly a very important aspect. There were no facts advanced by ONA that the scheme of the Act as we read it enfeebles the trade union or renders it a junior partner of the employer as suggested by ONA.

88. If we are wrong in our conclusion concerning the first part of the test regarding Charter values, we must consider the second question, whether the limit imposed on the freedom of association is proportionately balanced in relation to the mandate of the Act. In our view it is. As the Court in the ONA Decision observed, the purpose of the Act is to redress pay discrimination against women and ensure that it does not re-emerge. ONA says that the trade union is integral to achieving the purposes of the Act. However that may be (and bearing in mind that the Act applies also to non-union workplaces which are required to achieve and maintain pay equity without the intervention or assistance of a trade union), the fact that the Act limits the bargaining agent’s bargaining rights to the negotiation of the achievement of pay equity, as opposed to the maintenance of pay equity, does not in our view create a disproportionate imbalance against the freedom of association or subvert the purposes of the Act. As we have observed, the bargaining agent has an important statutory responsibility in both the achievement of pay equity and in the maintenance process. However, the Legislature has seen fit not to subject pay equity maintenance to mandatory bargaining. We are not persuaded that that legislative policy unduly compromises the freedom of association of the employees in ONA’s bargaining units.

89. Finally, we do not view the initial reaction of the Respondents in engaging ONA (via the CACCAC) in a brief series of discussions concerning the selection of a GNCS to be an implicit recognition of ONA’s right to negotiate pay equity maintenance per se.⁸ ONA gave the respondents notice to bargain under section 14.1. The Respondents were required to come to the bargaining table, but they were not obligated to accept the view that the pay equity plans were no longer appropriate and required amendment, or further, that the Respondents were under a statutory duty to bargain pay equity maintenance. Ultimately, following two meetings with ONA, and one further meeting with ONA and other interested trade unions, the Respondents determined that all that they were required to do was to review and maintain the pay equity plans and advise ONA of their efforts in that regard. Although it would have been open to the Respondents to involve ONA in the maintenance review exercise, they were not bound statutorily to do so, and they did not make any commitments to a negotiated outcome.

90. For these reasons, we agree with the conclusion of the Review Officer that the respondents were not required by the Act to bargain pay equity maintenance. Accordingly, these applications are dismissed.

Dated at Toronto this 10th day of September 2019.

“Patrick Kelly” ____

Patrick Kelly, Alternate Chair

“Carla Zabek” ____

Carla Zabek, Member

DECISION OF BOARD MEMBER Carol Phillips: September 10, 2019

1. I dissent.

2. I differ about whether the issue here is, as stated in the decision, whether the parties were required to bargain pay equity maintenance. It has also been argued that this case is about whether after major workplace restructuring, ensuing significant amalgamations and mergers of multiple employers, an existing Pay Equity Plan can be renegotiated or amended.

3. ONA argues that sections 13.1, 13.2 and 14.1 of the Act can be “stand alone obligations, separate and distinct from the general obligations to maintain pay equity set out in section 7(1)”. I agree with this interpretation.

4. The agreed statement of facts show that as a result of various government decisions, there have been many significant changes for the workplaces in question. Workplaces were amalgamated from 42 to 14. Of the resulting 14 new bargaining units 10 were ultimately represented by ONA; and of these 10, six were entirely new bargaining unit formations inclusive of formerly non-union employees. The bargaining unit scopes and the collective agreements were deemed no longer appropriate. The sorting out of the bargaining rights took specific legislation, the Public Service Labour Relations Transitions Act, to deal with and then the collective agreement negotiations took years to resolve.

5. These negotiations resulted in new, first collective agreements for these newly created bargaining units.

6. The union argues that in the same way as these substantially changed circumstances required new collective agreements for these workplaces, so the existing Pay Equity Plans of these workplaces were equally no longer appropriate and needed to be re-negotiated or amended. ONA made the case that the various workplaces were all subjected to numerous changes beyond the representing union's control and the only thing within the union's control would be its ability to mitigate possible harm to its members through negotiations. I agree.

7. As have my fellow panel members, I refer to Call-A-Service Inc., (2008) O.P.E.D. No.11 where the Tribunal gave examples of possible changed circumstances (emphasis added):

29. The Act does not define the term “changed circumstances”. It is clear, however, that the existing plan must be “no longer appropriate” for the establishment. Implicitly, in changed circumstances, the Employer must prepare and implement a new pay equity plan because the existing one is no longer suitable for the establishment. Some examples of changed circumstances could be: restructuring of the establishment; the certification of a union in a non-union establishment; and the amalgamation or merger of two or more employers. (Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73; and St. Joseph’s Villa (1993), P.E.R. 33). To paraphrase the panel in Parry Sound, it would be counter-intuitive to enact a provision permitting one to challenge a deemed approved plan that contravenes the Act, and then immediately below, permit one to challenge a deemed approve plan each time there are revisions: para. 28.

7. The issue of the Charter would not necessarily need addressing if we had found this to be a case of changed circumstances but I would like to make a comment. The area of Charter rights for collective bargaining is one that will continue to evolve as unions test their application to existing legislation. It makes sense that with jurisprudence that recognizes the right of free collective bargaining existing alongside legislation that limits its application, these kind of challenges will continue to arise.

8. For these reasons I would have found in favour of the Union and awarded the remedies they sought.

“Carol Phillips”

Board Member

Footnotes

1. 1A few public hospitals and non-profit organizations (e.g. Victorian Order of Nurses) also provided home care services.
2. 2The total number of CCACs was subsequently reduced to 42 York CCAC and Etobicoke CCAC merged.
3. 3A pension dispute affecting some of the employees who transferred to their CCACs arose subsequently, but was eventually settled.
4. 4The first set of collective agreements between ONA and the respondents following the composite collective agreements were for the term 2007 to 2011. The second set of collective agreements operated from 2011 until 2014, and the third set from 2014 until 2016.
5. 5Ontario Nurses’ Association v. Participating Nursing Homes, 2019 ONSC 2168 (“the ONA Decision”). As we indicated in the May 16, 2019 decision, there were two companion decisions issued by the Court, the ONA Decision and Participating Nursing Homes v. Ontario Nurses’ Association, 2019 ONSC 2772. Both Court decisions dealt with a decision of the Tribunal in Ontario Nurses’ Association v. Participating Nursing Homes, 2016 CanLII 2675 (ON PEHT) (“the Tribunal’s Decision”). At paragraphs 2 to 5, we stated: > 2. 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. > > 3. In the Homes Decision, the Court dismissed the judicial review application by the Participating Nursing Homes. > > 4. 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. > > 5. 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.
6. 6The non-union provision - section 14.2 - which has no direct bearing on the issues in this matter, also became law in 1993 via Bill 102.
7. 7And any non-union public sector employer became subject to sections 13.1 and 14.1.
8. 8In any case, the scope of bargaining pursuant to a notice given under subsection 14.1(1) does not include negotiating a GNCS: subsection 14.1(2) specifically excludes subsection 14(2)(a)’s directive that the parties are to negotiate a GNCS for purposes of section 12.