Ontario Nurses' Association v. Participating Nursing Homes, 2020 CanLII 2058

PAY EQUITY HEARINGS TRIBUNAL

PEHT Case No: 3696-10-PE

Ontario Nurses' Association, Applicant v "Participating Nursing Homes", Respondent v Ministry of the Attorney General, Intervenor

PEHT Case No: 1507-11-PE

Service Employees’ International Union, Local 1, Applicant v "Participating Nursing Homes", Respondent v Ministry of the Attorney General, Intervenor

BEFORE: M. David Ross, Chair, and Members Carla Zabek and Carol Phillips

APPEARANCES: Janet Borowy, Danielle Disnar, Andrea Sobko and Patrica Carr appearing on behalf of the Ontario Nurses’ Association; Adrienne Telford, Lara Koerner Yeo, Alexandra Murphy and Rosa Betler appearing on behalf of the Service Employees’ International Union, Local 1; Michael Allen and Michele White appearing on behalf of the Participating Nursing Homes; Carolyn Kay appearing on behalf of the Ministry of the Attorney General

DECISION OF THE TRIBUNAL: January 9, 2020

1. These are applications under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”), in which it was alleged by the applicant unions (“ONA” or the “SEIU”) that the responding party nursing homes (“PNH”) had failed to maintain pay equity in respect of the bargaining unit employees subject to pay equity plans concluded pursuant to Part III.2 of the Act (“the Proxy Plans”).

Background

2. These applications were filed with the Tribunal in 2010 (ONA) and 2011 (SEIU). On January 21, 2016, the Tribunal (differently constituted) issued its Ontario Nurses' Association v Participating Nursing Homes, 2016 CanLII 2675 (ON PEHT) decision (“the 2016 decision”) after hearing approximately thirty days of evidence. Given the extensive history to this case, for the purpose of brevity, only the aspects of the proceeding that are relevant to this decision will be set out below.

3. In 1994, the parties agreed to their deemed approved pay equity plans. However, a gender-neutral comparison system (“GNCS”) was not used to evaluate the male and female job classes as required by section 12 of the Act. Section 12 of the Act states:

Before the mandatory posting date, every employer to whom this Part applies shall, using a gender-neutral comparison system, compare the female job classes in each establishment of the employer with the male job classes in the same establishment to determine whether pay equity exists for each female job class.

4. At paragraph 114 of the 2016 Decision, the Tribunal wrote:

114. In large part, it seems to us, the Homes’ and the Unions’ arguments on maintenance failed to take account of the need to assess whether there had been any changes in the value of the work performed in either or both of the seeking employer’s and the proxy employer’s establishments, because the steps they took in developing the Proxy Plans do not readily allow for the ongoing meaningful measurement of that value. The Proxy Plans were based on the assumption that what was then the HCA (and is now a PSW) not only possesses similar skills regardless of whether they worked in a Municipal Home or a Home, but also performed the same duties under the same working conditions for a similar resident population; and that the work was of the same value to the Municipal Employers and to the Homes. The parties did not agree to a GNCS and they did not evaluate any job classes. Even if the assumptions on which the Proxy Plans were predicated were accurate at the time, we cannot be certain that they remain so. Indeed, the Unions’ evidence and arguments about the changes to the skill, effort, responsibility and working conditions of their jobs as compared to those performed in the Municipal Homes, where they suggest that resident acuity may not be as high or where staffing levels are greater, suggest that the assumption no longer holds true. Furthermore, we are cognizant that our analysis of the scope of the maintenance obligation where pay equity was achieved using the proxy methodology of comparison must be capable of application to all public sector workplaces in the Province where a “seeking employer” declaration was made. That includes ones where the key female job class’ duties may not be so similar to the jobs performed in the proxy establishment, as is the case in the Homes and to ones where there are no collective agreements to consult. Any maintenance analysis cannot ignore the ongoing monitoring of changes in the value of the jobs, whether in the Homes alone (where the Homes say the focus should be) or in the proxy establishments as well (where the Unions say the focus should be).

[emphasis added]

5. At paragraph 183 and 184 of the 2016 Decision, the Tribunal held that in the absence of a GNCS, it remains impossible to evaluate whether pay equity has been maintained in accordance with the Act:

183 We do not think it is possible to conclude on an a priori basis that any difference in pay, or even any differential increase in pay, as between PSWs (or RNs) employed in the Homes compared to PSWs (or RNs) employed in the Municipal Homes means that pay equity has not been maintained in the Homes. The value of the job classes must be a component of any maintenance exercise.

184 Although the $1.50 Plan may have achieved pay equity, it did so without applying a GNCS. So long as the skill, effort, responsibility and working conditions of the female job classes in the Homes remained unchanged, and they received the same percentage compensation increases, the absence of a GNCS had no impact on pay equity maintenance. We have already referred to the uncontradicted evidence before us that there have been significant changes in the clientele and the duties performed in the Homes that may well impact on the value of the job classes. Those changes make the $1.50 Plan inappropriate because the pay equity consequence of them can only be ascertained by evaluating the job information using a GNCS, which the Proxy Plans lack. In the unionized environment the selection of a GNCS and its application are matters that the Act contemplates will be negotiated between the employer and the union.

[emphasis added]

6. At paragraph 185 of the 2016 Decision, the Tribunal directed the parties to negotiate and endeavor to agree to an amendment to the pay equity plan that uses a GNCS as required by the Act, and to determine whether any maintenance adjustments were required:

Pursuant to our authority under section 25(2)(g) of the Act, the parties are directed to negotiate and endeavor to agree on an amendment to the $1.50 Plan to stipulate a GNCS, and to apply that GNCS to determine whether any maintenance adjustments are required.

7. In the 2016 decision, the Tribunal also concluded that the proxy method of comparison was not required once pay equity had been achieved as required by section 7 of the Act. This conclusion has been overturned on judicial review by the Divisional Court in Ontario Nurses’ Association v. Participating Nursing Homes, 2019 ONSC 2168. That decision has been appealed to the Court of Appeal. As of the date of this decision, hearing dates for that appeal have been scheduled for April 14 and 15, 2020.

8. Following the 2016 decision, the parties commenced their negotiations as directed. The PNH and SEIU were able to agree to a GNCS but the Tribunal understands that they have not completed any further steps. The PNH and ONA have still not agreed to a GNCS.

9. On February 16, 2018, ONA advised the Tribunal that they had reached impasse on certain issues and requested the Tribunal to adjudicate the matters related to the substance of those negotiations.

10. By decision dated July 9, 2018 (“the July 2018 Decision”), the Tribunal held that it does not have jurisdiction over any disputes regarding the substance of the GNCS plans as directed by its 2016 Decision. The basis for this conclusion is the Tribunal’s well-established jurisprudence that it does not have jurisdiction over any issue that Review Services has not first had the opportunity to address. At paragraphs 10 – 12 of the July 2018 Decision, the Tribunal held:

10. This is not a case where the Tribunal can conclude that the Review Services Process has been exhausted. These parties have not benefitted at all from the assistance of a Review Officer in the preparation of their proxy plan, although an Officer may be able to settle some of their disputes, and has the authority to decide the rest. Moreover, the statutory mechanism is designed to reduce and focus the issues that may ultimately be in dispute before the Tribunal.

11. The Act does not contemplate that the Tribunal have originating jurisdiction over the substance of the provisions to be included in the proxy plan. Consistent with that approach, the January 21, 2016 order directed the parties to engage in the process of negotiating those substantive provisions, and adjourned the matter sine die to permit them to do so. In so doing, the panel remained seized only in respect of the implementation of that order to meet and negotiate, and not in respect of whether the substantive provisions complied with the Act, matters which the Act contemplates are dealt with in the first instance by Review Services.

12. It is not at all obvious that the Tribunal has jurisdiction over the substantive matters at issue between the parties, which have not been the subject of a Review Officer’s order. Even assuming the contrary, however, it is not appropriate to convene a hearing as requested by ONA and the Homes. The prospect of devoting the Tribunal’s resources to engaging in what will likely be a lengthy hearing in the absence of a first-level determination and without pleadings is troubling, particularly in circumstances where the very underpinning of the Tribunal’s authority to do so (its interpretation of the application of the Act’s maintenance obligation in the context of a proxy plan) is under challenge in the outstanding judicial review applications.

11. The 2016 decision was judicially reviewed by both parties on different grounds. By decision dated November 22, 2019, the Tribunal adjourned the proceeding pending the outcome of the judicial review proceedings.

12. The Court issued separate decisions regarding these judicial review applications on the same date: Ontario Nurses’ Association v. Participating Nursing Homes, 2019 ONSC 2168 (“the Union JR decision”); and Participating Nursing Homes v. Ontario Nurses’ Association, 2019 ONSC 2772 (“the PNH’s JR decision”).

13. In the Union JR decision, the Court overturned the Tribunal’s conclusion that the proxy method of comparison was not required during the maintenance phase, and at paragraph 90 of that decision, directed the Tribunal to specify what procedures should be used to ensure that the claimants who achieved pay equity through the proxy methodology continue to have access to a male comparator in order to determine whether pay equity has been maintained:

In this case we do not consider it appropriate to send this matter back to the Tribunal to reconsider a proportionate balancing of the Charter protections at play, further delaying the relief the claimants have sought for many years. We conclude that the only proportionate balancing of the Charter right of equality with the statutory mandate of the Act, properly construed, requires the maintenance of pay equity in predominantly female workplaces through the proxy method of comparison. Accordingly, this matter is remitted to the Tribunal to specify what procedures should be used to ensure that the claimants who achieved pay equity through the proxy methodology continue to have access to a male comparator in order to determine whether pay equity has been maintained.

[emphasis added]

14. The Court of Appeal has granted leave to the PNH and Attorney General in this matter. The Tribunal understands that the Unions have, or will be on consent, been granted leave to cross-appeal.

15. By letter dated June 11, 2019, the Unions requested the Board to recommence the proceeding to address the Court’s direction set out in paragraph 13 above. The PNH has requested the Board to “suspend the development of a proxy pay equity maintenance method” until the disposition of the appeal of the Union JR Decision to the Court of Appeal.

16. The parties made submissions regarding PHN’s request to suspend the development of a proxy pay equity maintenance method before the Tribunal on December 4, 2019.

Should the Tribunal Grant A Stay of Proceedings or Adjournment Sine Die Pending the Decision of the Court of Appeal?

17. The Tribunal does not need to decide whether this proceeding should be stayed or adjourned (regardless of how the PHN’s request is characterized), or whether it has the authority to do so, at this stage of the process.

18. All of the parties agreed at the December 4, 2019 hearing date, that the next steps that have to be taken to determine whether pay equity has been maintained (regardless of what the Court of Appeal decides) does not involve the proxy methodology in the maintenance process that the Divisional Court has directed the Tribunal to prescribe.

19. In fact, the declarations filed by the Unions confirm that the parties are, at the most optimistic, a minimum one year away from requiring that methodology to be prescribed and likely much longer.

20. ONA filed a declaration on behalf of Patricia Carr. In her declaration, she confirmed to the Tribunal that “it is likely to take a year to a year-and-a-half to finalize the nurses’ job class ratings and evaluations to the point of pay equity adjustments,” and that “there is no reason why the parties cannot once again engage in full pay equity negotiations”.

21. SEIU filed a declaration on behalf of Alexandra Murphy. In her declaration, she set out a six-step process that she expects the SEIU and the PNH to complete pursuant to their agreed to terms of reference following the 2016 Decision. The first four steps of that process involve completing 225 questionnaires from across Ontario, and the internal evaluations and ratings of approximately 47 job classes. None of those first four steps require the proxy methodology procedure that the Tribunal has been directed by the Divisional Court to prescribe. Ms. Murphy estimates that those first four steps will take a minimum of 17 months to complete.

22. These timelines appear to this panel to be optimistic as they do not build in any time if an impasse should occur regarding the substance of the amended plans, and an Application to Review Services must be filed with the Pay Equity Commission as set out in the July 2018 decision and confirmed in this decision as set out below.

23. Especially given the emphasis placed on delay during the parties’ submissions, it is concerning to the Tribunal that there is no evidence of any steps that have been taken by the parties towards establishing an amended pay equity maintenance plan that uses a GNCS since the Tribunal issued its July 2018 decision. ONA submitted that some of this delay is explained by “confusion” around the effect of the Tribunal’s July 2018 and November 22, 2018 decisions.

24. This decision should clarify any confusion about the next steps that the Tribunal expects the parties to undertake. If the parties reach an impasse about the substance of the amended plans, the Tribunal was clear in the July 2018 decision that it does not have jurisdiction over that dispute. In arriving at this conclusion, the Tribunal applied its well-established jurisprudence that it does not have jurisdiction to decide the substance of issues that have not been before the Pay Equity Commission Review Services (“Review Services). As recently as November 20, 2018, the Tribunal confirmed this principle in Brockville General Hospital, 2019 CanLII 39379 (ON PEHT), citing the July 2018 Decision specifically.

25. It is not within the purview of parties before the Tribunal to ignore its directions and instead insist that the Tribunal has jurisdiction over matters it has already decided that it does not. If a party disagrees with any aspect of a Tribunal’s decision, it is entitled to request the Tribunal to reconsider its decision and/or to judicially review the decision. Neither of those steps were taken with respect to the July 2018 Decision.

26. As is it reasonably foreseeable that the parties will still be in the initial stages of developing an amended plan when the Court of Appeal issues its decision, the issue of whether the Tribunal should stay the development of the proxy methodology as directed by the Divisional Court may become moot. The Tribunal will consider the parties’ arguments on whether a stay should be granted, if, and when, the parties are nearing completion of the stages that do not require the proxy methodology procedure to be prescribed and if the Court of Appeal has not yet rendered its decision.

27. In any event, if the PNH continues to wish that these proceedings, including the Court’s direction to the Tribunal, are formally stayed, it can file a Request to Stay this proceeding and/or the Divisional Court’s order at the appropriate Court pursuant to the Rules of Civil Procedure.

The Divisional Court’s Direction

28. The direction contained at paragraph 90 of the Union JR Decision is set out in paragraph 13 above, is a specific direction to the Tribunal. The Divisional Court has provided no guidance to the Tribunal about how it should go about its directed task. Neither does the Act nor Ontario Regulation 396/93 “Proxy Method of Comparison” (“OReg 396/93”). As such, in effect, the Tribunal has been directed by the Divisional Court to prescribe a procedure that fills a legislative gap that will apply to hundreds, if not thousands, of employers and tens of thousands of employees covered by the 55 classes of “seeking employers” and “potential proxy employers” as prescribed in OReg 396/93. This is a significant task that the Tribunal does not undertake lightly. The Tribunal disagrees with the Unions’ submissions that this exercise is akin to when it must interpret and decide issues that relate to the job-job or proportional value methods of comparison as set out in the Act.

29. Furthermore, in considering the Divisional Court’s direction, it is not clear to the Tribunal that the PNH, ONA and SEIU have a paramount right over the other parties covered by the 55 classes of employers that are governed by Ontario Regulation 396/93 to make submissions about what procedures the Tribunal should prescribe. When considering its Court directed task, it may be that the Tribunal directs submissions from only the parties to this proceeding; that the Tribunal seeks submissions from the public and other interested entities; or undertakes a different process altogether. The Tribunal ensures that it is taking this responsibility seriously.

Orders

30. In Tribunal File No: 3696-10-PE, ONA and the PNH are directed to recommence negotiating a GNCS forthwith. The parties are directed to write to the Tribunal as soon as they agree on a GNCS, or by no later than April 30, 2020, whichever is earlier, to confirm the progress of those negotiations. If the PNH and ONA are unable to resolve impasses between them regarding the substance of the GNCS, they are directed to file an application to Review Services, and to write to the Tribunal confirming that this has occurred.

31. In Tribunal File No: 1507-11-PE, the PNH and SEIU are directed to recommence implementing their agreed upon process. The parties are directed to write to the Tribunal as soon as the first stage of that process is complete, or by April 30, 2020, whichever is earlier, to update the Tribunal about the progress of this process. If the PNH and SEIU are unable to resolve impasses between them regarding the substantive differences that arise during the process of completing their amended pay equity plan, they are directed to file an application to Review Services, and to write to the Tribunal confirming that this has occurred.

"M. David Ross"____ M. David Ross, Chair "Carla Zabek"______ Carla Zabek, Member "Carol Phillips"______ Carol Phillips, Member