Ontario Nurses' Association v. Participating Nursing Homes, 2021 CanLII 117530

Ontario Nurses' Association v. Participating Nursing Homes

PEHT Case No: 3696-10-PE

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

PEHT Case No: 1507-11-PE

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

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

Decision of the Tribunal: November 8, 2021

Decision

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 respondent 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”).

2. By decision dated January 9, 2020, the Tribunal directed the parties to recommence establishing their amended pay equity plans which use an Act compliant gender-neutral comparison system, as opposed to the deemed approved “$1.50 Plan” which did not. By decision dated October 20, 2021, following the Supreme Court of Canada dismissing leave to appeal of Participating Nursing Homes, 2021 ONCA 148, the Tribunal, on its own initiative, directed the parties to update the status of their progress.

3. The parties have filed their status updates in accordance with the Tribunal’s direction. From the submissions received, it is not apparent that the parties are any further ahead in their progress than when the Tribunal wrote on January 9, 2020:

4. 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.

5. 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

6. 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.

7. 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.

8. As stated in the January 9, 2020 decision, the processes that must be completed first, do not require the Tribunal’s direction about how they are to conduct a “maintenance by proxy” method. To use an analogy, it is the Tribunal’s view that the “skeleton” of these plans have to be built and completed by the parties before they can be “fleshed out” using a “maintenance by proxy” method. ONA and the PNH have not yet agreed to a GNCS tool, which is a preliminary step to any of these other considerations. The SEIU is further along than ONA’s process, but again, they need to continue to work with the PNH on the internal job descriptions and evaluations before moving the process to the external “proxy” stages.

9. The Tribunal understands and appreciates COVID-19 affected the parties’ ability to continue their work on these processes, especially given that these homes are in the long-term care sector which was disproportionally impacted especially at the outset of the pandemic. However, this does not negate the requirement that this work must be completed before the Tribunal will provide direction about how the “proxy maintenance” process will occur. Accordingly, we are in the same position as we were in January 2020, with the exception that we have clarity that a “maintenance by proxy” method will be implemented once the internal steps are completed. To introduce additional steps at this stage can only serve to distract the parties from the work that has to be completed as soon as possible.

10. The Tribunal directs the parties to recommence their work on their amended plans forthwith.

11. By no later than March 31, 2022, the parties are directed to file a status update with the Tribunal regarding where they are in this process and what steps have been taken since their last correspondence to the Tribunal.

"M. David Ross" M. David Ross, Chair

"Carla Zabek" Carla Zabek, Member

"Carol Phillips" Carol Phillips, Member