Court File and Parties

PEHT Case No: 2001-18-PE

Glen Hill Terrace Christian Homes Inc., Applicant v Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110, Respondent

BEFORE: M. David Ross, Chair, and Lori Bolton, Irene Harris, Members

DECISION OF CHAIR M. DAVID ROSS AND MEMBER LORI BOLTON: November 23, 2021

1. This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”). In this application, the applicant (“Glen Hill”) has sought review of the Order dated December 14, 2017. Glen Hill submitted that it does not have an obligation to maintain pay equity; that it is impossible to comply with the Order from 2005 to 2011; and that a proxy methodology is not required with respect to pay equity maintenance.

2. By decision dated August 26, 2021, the panel disposed of the issue of whether Glen Hill had an obligation to maintain pay equity. It does.

3. In the August 26, 2021 decision, the Tribunal also deferred the issue of whether the proxy methodology is required with respect to pay equity maintenance. On October 14, 2021 the Supreme Court of Canada dismissed leave to appeal. Accordingly, given the Court of Appeal’s decision in Participating Nursing Homes, 2021 ONCA 148, that position is dismissed as the Tribunal cannot arrive at a conclusion inconsistent with the Court of Appeal’s without violating the doctrine of stare decisis.

4. The Tribunal directed submissions from the parties with regards to Glen Hill’s submission that the Order is impossible to comply with between 2005 and March 1, 2011 and has considered those submissions. The respondent (“CUPE”) was afforded the opportunity to respond to that position. After considering those submissions, the Tribunal is of the view that it can decide this matter as a written hearing pursuant to its Rules of Practice.

Background

5. Glen Hill purchased two facilities in Bowmanville out of receivership on March 1, 2011. These facilities had been previously been in receivership for approximately nine years.

6. Glen Hill inherited the deemed approved pay equity plan, which was a “$1.50 Plan” that was established in the mid-1990’s. This $1.50 Plan was common in this industry; however, it did not use a gender‑neutral comparison system, and 25 years later, the Tribunal is having to redress the fact that these plans were not done using a gender-neutral comparison systems (“GNCS”) as required by the Act. The issue with this $1.50 Plan is that it did not use a GNCS to evaluate the male and female job classes, and therefore, the Tribunal has no mechanism that it rely on or review to compare against how job classes were initially evaluated to determine whether there has been any changes in the relative values of male and female job classes within an organization. This matter gets even more complicated, such as in the instant case, where there are not enough male job classes, and therefore, the employer used the proxy method to establish pay equity, as the Act provides no guidance or instruction whatsoever about how parties are supposed to use the proxy method. This issue is not unique in this case and is commented on in detail by the Tribunal in Participating Nursing Homes, 2016 CanLII 2675 (ON PEHT). It bears to note that these plans were agreed to by employers and their respective trade unions and operated under for many years, through multiple rounds of collective agreement negotiations, and as such, no side can have the finger solely pointed at them as being the architect of this situation we find ourselves in today with respect to pay equity maintenance in this sector.

7. The instant application arises out of the Pay Equity Office contacting Glen Hill as part of its monitoring program on October 12, 2016. In this case, after Glen Hill purchased the facilities, it operated with CUPE for five and one-half years with its pay equity obligations being governed by the $1.50 Plan. There is no suggestion in the materials that CUPE ever raised any concern with pay equity issues during this period, during collective bargaining or otherwise. As such, this application does not arise out of a dispute between the employer, the party with the obligation to ensure pay equity is maintained, and the union, the party with the obligation to represent its members to ensure they are being paid appropriately and in accordance with the applicable collective agreements and statutes.

8. Over a year later, on December 14, 2017, the Review Officer concluded that Glen Hill was unable to demonstrate that pay equity had been maintained since 2005. The Review Officer then made several orders:

i) List the female job classes represented by CUPE Locals 2225-06/12 and 5110 at the Employer since 2005, and provide the year the job class was created, if it was created after 2005, and provide results to me within 4 months of the date on this Order;

ii) Submit the job rate for each female job class represented by CUPE Locals 2225-06/12 and 511 within 5 months of the date on this Order;

iii) Negotiate and endeavour to agree on an amendment to the $1.50 Plan to stipulate a gender neutral evaluation system, and provide the system to me within 6 months of the date on this Order;

iv) Complete evaluations for all female job classes represented by CUPE Locals 2225-06/12 and 5110 and submit evaluation scores within 8 months of the date on this Order;

v) Identify the key female job classes, and provide me with the job rates and job values for each year since 2005 within 8 months of the date on this Order;

vi) Identify the non-key female job classes, and provide me with their job rates and job values for each year since 2005 within 8 months of the date on this Order;

vii) Perform a proportional value analysis for each year since 2005, comparing key female job classes in job rate and job value with the pay equity achieved job rate line that established pay equity for the key female job classes on January 1, 1994, adjusted each year by the non-pay equity increases provided if any, since 1994, within 9 months of the date on this Order; and

viii) Perform a proportional value analysis for each year since 2005, comparing non-key female job classes in job rate and job value with a pay equity achieved job rate line for each year constructed using the pay equity achieved job rates and job values of the key female job classes within 9 months of the date on this Order.

9. As such, the Review Officer has directed Glen Hill and CUPE to negotiate an amended pay equity plan, one that uses a GNCS, dating back to 2005. The reason for the delay between when the Review Officer issued her order and the date of this decision is that this matter was put in abeyance at the request of the parties pending the litigation of the Participating Nursing Homes, supra, decision that proceeded to the Court of Appeal. Leave to appeal that decision was not granted by the Supreme Court of Canada.

10. Glen Hill asserted that it purchased the facilities out of receivership on March 1, 2011 and it does not have the necessary information to comply with the Review Officer’s Order prior to that date. Glen Hill submitted that it has sought this information from the previous administrator of the facilities but was advised that it did not have this information either. Glen Hill relied on Queensway Nursing Homes, 2010 CanLII 56873 (ON PEHT) in support of its position that it cannot be ordered to do something that it is impossible to comply with.

11. CUPE submitted that the fact that the applicant did not acquire the necessary documents that predate its purchase in 2011 does not alleviate it from its obligations under the Act. CUPE submits that the applicant’s position would result in unjust enrichment.

Decision and Analysis

12. The starting point in every analysis conducted by the Tribunal is that the purpose of the Act “is to redress systemic gender discrimination in compensation for work performed by employees in female job classes”.

13. There is no question that, at the time of purchase, Glen Hill inherited any pay equity obligations that pre-existed its purchase of the facilities. Section 13.1(1) of the Act states:

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.

14. Therefore, CUPE’s position that Glen Hill was required to, and ought to, have secured the information sought by the Pay Equity Office back to 2005 at the time of purchase is clearly a reasonable one. As such, the clear language of section 13.1(1) would have been the end of the analysis if there are not other competing legal principles, specifically a party’s right to natural justice and procedural fairness which can be affected by a delay that has made the Review Officer’s orders impossible to comply with.

15. In this case, the timing about when the Orders were made, and how far back the Order retroactively applies, requires the Tribunal to consider whether the delay that has occurred in this case has caused the impossibility to comply with the orders, and therefore has prejudiced to Glen Hill’s right to a fair hearing.

Are the Orders Impossible to Comply With?

16. Glen Hill relied on Queensway Nursing Home, supra, where the Tribunal held that an order that is impossible to be complied with cannot stand. At paragraph 46 of this decision, the Tribunal held:

As indicated above, the Order requires Queensway to create a pay equity plan based on circumstances that existed in 1994. It is required to collect information from a proxy employer based on circumstances from 1994. This information no longer exists. It is impossible for Queensway to create a pay equity plan in the manner set out in the Order. Further, the Order requires Queensway to calculate wage adjustments owing to employees and former employees of Queensway back to 1994. Queensway does not have records of hours worked by employees dating back 14 years. As such, it is now impossible for it to make the calculations required by the Order. As stated in Greater Essex County District School Board, [2001] O.O.H.S.A.D. No. 107, an employer cannot be required to comply with an order with which it is impossible to comply. For that reason alone, the Order cannot stand.

17. The determination about whether an order is “impossible” to comply with is contextual on the facts of each case. The facts in the instant case are distinguishable from the vast majority of other circumstances that appear before the Tribunal in that, not only is there a significant delay in time between 2005 and 2017, but that Glen Hill had no responsibility or involvement with these facilities until March 1, 2011. The other significant factor that is different is that these facilities were in receivership, which complicated the predecessor’s organizational structure and practically affects what records would be kept for over a decade or otherwise recoverable, and where they could possibly be found if they still exist.

18. CUPE has submitted that Glen Hill’s failure to ensure that it received and maintained documents is its own, and that it would be unjustly enriched if its position is accepted. However, CUPE’s submissions do not include any indication about how a pay equity exercise could be conducted without the necessary documents or information. It is not sufficient in cases like these that involve 15 years of delay and potential retroactivity to require Glen Hill to guess or estimate at the conditions for work during periods of time that documents through no fault of its own, no longer exist.

19. As such, in this case, as with many where there has been a significant delay and period of potential retroactivity (which is regrettably common in applications that proceed to the Tribunal), there are two legal principles that conflict with one another. First, there is no prescribed statutory limitation period, and compensation to redress systemic discrimination can be ordered retroactively to the date of the violation. Second, there is no corresponding obligation in the Act to keep records at all, or any direction about how long these records must be preserved so that an employer can demonstrate that it has maintained pay equity. As such, given the amount of time that passes before a matter reaches the Tribunal, it is unfortunately common for a conflict to manifest between redressing systemic discrimination of female job classes in workplaces, and the inherent prejudice that happens to a fair hearing as a result of significant delays. In Toronto Catholic District School Board, 2019 CanLII 116293 (ON PEHT), the Tribunal commented on the fact that there is no record keeping obligation contained in the Act, and the prejudice that delay is presumed to have on the right to a fair hearing:

Although the Union raised the possibility of appealing the Order in 2008 and again in 2011, we do not find that the Employer was under the obligation to remain prepared for a potential appeal indefinitely. Further, the key prejudice that occurred in this case was unavoidable (retirement, resignation and a death) and could not have been mitigated by any diligence on the party of the Employer. Further, while the Act does not contain a general limitation period for filing a review of an order, the Act also does not include a record keeping obligation, much less require an Employer to maintain records indefinitely so as to defend itself in the event that an applicant seeks review of an Order several years after the fact.

[emphasis added]

20. In Queensway Nursing Home, supra, the Tribunal commented on this conflict at paragraph 49:

Further, the delay leading up to the Order is the direct cause of Queensway’s inability to have a fair hearing. Although Queensway argues that the 1995 Plan is a valid pay equity plan there is really no doubt that the 1995 Plan does not meet the technical requirements of the Act. As explained above, that is because of the industry-wide negotiations that took place and the development and adoption of the $1.50 Plan by virtually all unionized and non-union employers in the nursing home industry. However, it is also Queensway’s position that had the steps set out in the Act for developing a pay equity plan been strictly followed, the resulting pay equity adjustments that any employee of Queensway would have been entitled to receive would likely not have exceeded what they were in fact paid. The difficulty for Queensway is, given the passage of time, the records necessary to create a pay equity plan in the manner dictated by the Act and calculate any adjustments that were required as a result, no longer exist. In the absence of being able to calculate the adjustments Queensway would have been required to pay had a plan been created in strict compliance with the Act, it is unable to prove that the amounts it has paid were sufficient to meet its pay equity obligation.

[emphasis added]

21. In this case, even accepting CUPE’s position that Glen Hill should have secured all relevant records relating to pay equity at the time of purchase, five and a half years passed before Glen Hill was contacted by the Pay Equity Office about their CUPE pay equity plan. Even if Glen Hill had secured every relevant document at the time of purchase, under no scenario does the Tribunal find it reasonable that Glen Hill would have been required to keep these documents going back to 2005 given that a deemed approved pay equity plan was in place, and Glen Hill had no forewarning from the Pay Equity Office, CUPE or otherwise that its pay equity obligations for the CUPE bargaining unit were going to be challenged back to 2005, which would have made it reasonable for them to ensure that they kept these older records. For example, if a concern was raised, and an application was filed with review services, there would be an immediate obligation to preserve all of these records and not to destroy or delete them in the normal course because of the passage of time.

22. As the Tribunal has held in the cases cited above, that a significant delay where information is not available to the extent where a party cannot comply with an order causes inherent prejudice to a party’s right to respond to an application. But this is not an issue that solely affects a party, as it also causes prejudice to the decision-making process the Tribunal must undertake as it is reliant on evidence to arrive at its decisions in a de novo hearing process. In the specific circumstances of this case, the delay has caused an impossibility to comply with the order going back to 2005 because the records the Tribunal is reliant on to make its decisions are no longer available, and the Tribunal is cautious of determining whether an employer had not maintained pay equity while a deemed approved plan that was agreed by the union and not challenged during this period on speculation and guessing. It bears repeating that in this case, we are dealing with the fact that from 2005 to 2011 the predecessor employer and the union had a collective bargaining relationship and were governing their actions pursuant to a deemed approved pay equity plan. There has been no finding by the Review Officer that any pay equity obligations are owing. The Review Officer’s conclusions appear to be based on evidence that was put before the Tribunal in an unrelated case to this one, that job classes may have changed during that period. As such, since this process is de novo, the Tribunal will not consider the Review Officer’s rationale, especially where she took notice of findings in a decision where neither Glen Hill nor CUPE were parties.

23. To be clear, this decision does not stand for the proposition that employers do not have pay equity obligations following a sale of a business; they absolutely do. This decision also does not stand for the proposition that an employer can prematurely destroy records and then claim “impossibility” to defeat an application proceeding before this Tribunal, or otherwise claim “impossibility” simply because there has been a passage of time. In those cases, the Tribunal is free to draw inferences. To be clear, there is no retroactivity period in the Act and that is an important consideration. However, the fact that distinguishes this case from all the others is that the period in which Glen Hill claims is impossible to provide documents for is a period when it was not present at all in these facilities. However, Glen Hill is still being ordered to review over a decades’ worth of materials to ensure pay equity has been maintained since they took over these facilities. 10 years of potential retroactivity is significant for employees who may have been unpaid in female job classes, if it is discovered that pay equity has not been maintained.

24. As such, the panel’s decision limiting the period to March 1, 2011 is pursuant to the principles of procedural fairness and natural justice, and it is the combination of the significant delay in this case between the date of purchase and the order; the fact that there is no information in the materials that Glen Hill had any forewarning that there was a concern with the CUPE pay equity plan; the fact that Glen Hill has no independent information about how the facility operated from 2005 to March 1, 2011; there is no indication in the materials that Glen Hill can get reliable information from that period; and the fact that CUPE has not provided the Tribunal with any documents that it has in its possession that could assist with the time period between 2005 and March 1, 2011; which leads the Tribunal to this conclusion. To be clear, this decision should only be relied on in subsequent proceedings if all of these facts are present as it is an extraordinary set of circumstances.

25. Section 25(2)(d) of the Act authorizes the Tribunal to confirm, vary or revoke orders of review officers. It states:

25(2) The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,

26. (d) may confirm, vary or revoke orders of review officers

27. Accordingly, the Tribunal exercises its discretion to vary the temporal scope of the Review Officers’ orders from 2005 to March 1, 2011, and the time periods for complying with these directions are from the date of this decision. Otherwise, the orders remain in effect as written.

28. Once the parties have completed the steps of the pay equity process internal to Glen Hill, the parties are directed to write to the Tribunal indicating this fact, and the Tribunal will provide direction about how they are to use proxy male comparators for the purpose of pay equity maintenance.

"M. David Ross" Chair

“I concur” "Lori Bolton" Member

DECISION OF MEMBER IRENE HARRIS: November 23, 2021

29. I do not agree with the majority decision that the Applicant Employer, at its two private nursing homes, does not have to meet pay equity obligations from 2005 to 2011, but only from 2011 onward, when the two homes were bought out of Receivership. It denies potential pay equity payments to female dominated workers in these facilities for 2005 to 2011. The decision gives weight to concerns about procedural delays prejudicing the Employer’s right to a fair hearing. However, this weight given to delays, is at the expense of weight given to ensuring that the purpose of the Pay Equity Act is met so that systemic discrimination in wages does not continue from 2005 to 2011. In other words, the decision results in these females dominated workers losing pay because of the length of time involved in the Receivership. For reasons set out below, I do not accept that it is impossible for the Employer to comply with an order from the Tribunal to do pay equity maintenance for these workers, going back to 2005. Further, in the recent decision of the Ontario Court of Appeal in Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148 (“Participating Nursing Homes”) (leave to appeal to the Supreme Court of Canada denied) the Court noted:

49Thus, the Tribunal’s approach to maintenance is limited to an internal comparison between the key female job class and the non-key female job classes. In the Tribunal’s view, “maintenance does not require the monitoring of changes to the value or compensation of the female job classes in the proxy establishment.” In other words, no ongoing comparison is made with the deemed male job classes in the proxy workplace.

50In my view, the Tribunal’s interpretation – which deprives women in establishments without male job classes access to an ongoing deemed male comparator – is unreasonable as it ignores the purpose, scheme and plain wording of the Act.

[emphasis added]

30. I agree with the decision of the Court of Appeal requiring the proxy methodology of comparison be used for paying equity maintenance in the homes and that the court noted that the comparison is ongoing. The Order needs to ensure that the male comparator in the proxy employer is used, on an ongoing basis (including from 2005 to 2011).

31. For reasons set out below, I would require the Employer to go back to 2005 to demonstrate pay equity maintenance.

32. In the case before us, Glen Hill purchased two facilities in Bowmanville in 2011, out of Receivership and the question of maintenance of pay equity at the facilities was the result of monitoring by the Pay Equity Office. The Review Officer’s order was made in 2017, requiring pay equity be maintained back to 2005. The majority of the panel’s decision decides that the time between 2005 to 2017 is a significant delay and that has been impacted by the fact that there was a receivership complicating the record keeping given the previous organizational structure.

33. However, while the delay between 2005 and 2017, i.e. from the year that pay equity was not maintained to the year the Review Officer issued the order, looks lengthy, the length of time is mitigated by activity on pay equity which occurred during that time period. In 1995 there was an order from the Pay Equity Office. In 2016 the Pay Equity Tribunal made its decision about pay equity maintenance, resulting in the Pay Equity Office doing a monitoring check on this Employer. According to the Applicant Employer’s submission, when Glen Hill bought the homes in 2011, Ernst and Young acted as the Receiver which in turn contracted Extendicare to operate the homes. Glen Hill’s submission says that efforts to obtain records from Extendicare have been made without successes. However, Glen Hill’s submission goes on to say that it may be able to construct wage grids from expired collective agreements with CUPE for the pre-2011 period, although concerned that this would not include: ”…the value of non-wage compensation during the pre-2011 period…”. In my view the delay between 2005 and 2017, was not a period of time in which no pay equity concerns were raised. The Receiver and the Purchaser should have given more consideration to their Pay Equity Act obligations. Records could have been kept and many were. After the Tribunal’s 2016 decision on maintaining the $1.50 plan, the Review Officer, on October 12, 2016, asked Glen Hill Terrace Christian Homes for documentation on pay equity. Paragraphs 12 and 14 of the Review Services Order (Pay Equity Office file number 16-22966, December 14, 2017) states:

34. The Employer’s representative submitted a pay equity plan for CUPE-represented job classes dated June 30, 1995, a list of all employees and a list of job classes with job rates.

35. The Employer’s representative informed the Review Officer that negotiations are currently underway between the Employer and CUPE Locals 2225-06/12 and 5110 with regard to pay equity maintenance.

36. I would not have accepted Glen Hill’s submissions that the necessary evidence does not exist and found that the orders are “impossible to comply with” prior to directing further submissions from the parties about the steps that they took to secure these records, and asking the parties for their submissions about whether there are other ways to secure the necessary information for 2005 to March 1, 2011. Given that this issue involves the potential underpayment of female job classes for a significant period of time, the purpose of the Act, and the lack of any statutory limitation period, I feel it was imperative to see further support of the employer’s claim that it is impossible to comply with these orders before deciding this issue.

37. The Divisional Court, in its decision, Participating Nursing Homes v. Ontario Nurses’ Association, 2019 ONSC 2168, 2019 ONCS 2168, dealt with the question of concerns about information to maintain proxy plans at paragraph 83. While this quotation deals with information from the proxy employer perspective, it is applicable to the seeking employer:

83The Tribunal cites a practical impediment that proxy comparison on an ongoing basis would be an onerous task for the proxy employer. The Tribunal finds that information about proxy employers’ compensation rates is largely in the public domain and proxy employers are required to monitor the work and pay of their own female job classes in order to maintain pay equity. To the extent proxy female job classes are in a bargaining unit, the applicable collective agreement setting out their compensation (and incorporating as required by the Act any pay equity adjustments) must be filed with the Ministry of Labour and is available to consult. Proxy comparators will be applied from the date the pay equity gap is alleged to have re-emerged. There will be no need for the proxy employer to go back to 1994. Moreover, there is no consideration, if proxy comparison is denied, of whether the onus this puts on proxy employers is outweighed by the harmful impact on the people to whom this pay equity scheme was designed to help.

36. The majority of the panel draws on previous Tribunal cases regarding an employer’s inability to comply with a Review Officer order due to lack of record keeping or long delays. In Queensway Nursing Home v. Group of Confidential Employees, 2010 CanLII 56873 (ON PEHT) (“Queensway”), the issues are different than in this case. At paragraph 29 of Queensway, the Tribunal summarized the Law:

37. There are many decisions that consider whether delay leading up to a hearing will warrant a stay of proceedings. In the administrative law context it has been determined that delay, standing alone, will not warrant a stay of proceedings. It is only where the very fairness of a hearing has been compromised, or the delay amounts to an abuse of process, that a remedy, such as a stay of proceedings, is warranted. Whether a delay amounts to an abuse of process is not determined based on the length of the delay alone. Rather, it depends on contextual factors such as the nature of the case and its complexity, the facts and issues in dispute, the purpose and nature of the proceedings, whether the party seeking a remedy contributed to the delay and the nature of the various rights at stake in the proceedings.

38. And in paragraph 48 the Tribunal described the circumstances in Queensway as follows:

39. The delay that occurred in this case involves delay on the part of the anonymous individual who initially filed the complaint and delay on the part of the Pay Equity Commission. The anonymous individual did not file the complaint until eight years after Queensway posted the pay equity plan. Given that the individual did not file a response or attend at the pre-hearing conference we have no explanation for the delay. The Commission, notwithstanding its knowledge of the industry-wide adoption of the $1.50 Plan in 1995 at no time notified Queensway or the nursing home industry that it did not consider the $1.50 Plan to be a valid pay equity plan. Rather, the Commission, in 2000 ordered a nursing home industry employer to comply with the $1.50 Plan in respect of its non-union employees. When the Commission received the anonymous complaint against Queensway in 2003 it did not notify Queensway of the complaint for a year; did not advise Queensway that it considered there to be a problem with the 1995 Plan for a further three years; and didn’t issue an Order until five years after the complaint was filed. There has been considerable delay in this matter.

40. The Review Officer’s order for Glen Hill in paragraph 5, acknowledges that :

41. On June 30, 1995, Royal Crest Lifecare Group was issued an Order by the Pay Equity Office

42. At that time, the Employer posted and implemented a deemed approved proxy pay equity plan requiring the job rates of all female job classes represented by CUPE to be adjusted by $1.50 per hour to achieve pay equity.

[emphasis added]

39. The circumstances in Queensway are very different from this case. At Glen Hill there is a deemed approved plan in place; the Glen Hill case is dealing with maintenance of the deemed approved plan; the Review Officer’s investigation is part of the Commission’s monitoring obligations; monitoring took place after the Tribunal decision of 2016 for Participating Nursing Homes and the Employer submits the Parties were negotiating maintenance. As well, since the Queensway decision, the Courts have determined that, for Nursing Homes which participated in what is known as the $1.50 plan, pay equity plans need to be maintained using the proxy method of comparison with ongoing access to the male comparator. The Divisional Court in its decision Participating Nursing Homes v. Ontario Nurses’ Association, 2019 ONSC 2772, notes in paragraph 32:

32With ongoing access to a male comparator, there will be no need for PNH to apply a GNCS to 1994 circumstances. Proxy comparators will be applied from the date the pay equity gap is alleged to have re-emerged. Although establishing a GNCS at the date the pay equity gap is alleged to have re-emerged may pose some challenges, there is no evidence before us to establish that the task would be particularly onerous or impossible. In any event, it was the obligation of the employer to prepare a pay equity plan in compliance with the Act. It failed to do so. Its position now that it should be relieved of the obligation because it would be too onerous rings hollow.

40. Further, the Court of Appeal, as set out above, and repeated here for convenience (Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148), agreed with the Divisional Court that the Tribunal should specify procedures to be used to ensure that pay equity is maintained using the proxy method:

87I agree with the Divisional Court that the matter should be remitted to the Tribunal to specify what procedures should be used to ensure that those employees, represented by the Unions, who have established pay equity through the proxy method, will continue to have access to male comparators to maintain pay equity.

41. The last concern I have regarding timing of pay equity maintenance for Glen Hill goes to the Majority’s point that the purchase of the facilities from Receivership “complicates the Receiver’s organizational structure and responsibilities for record keeping”. I do not agree that the Tribunal should establish the date of ownership for Glen Hill as the date for commencing pay equity maintenance obligations, because the homes were bought out of a Receivership that went on for 9 years. The Pay Equity Act’s purpose cannot be met if an Employer is allowed to skirt Pay Equity obligations by a claim that they do not have payroll records before their date of ownership. Again, I would have ordered more submissions about the steps taken to ensure that records no longer exists,, and in my opinion more needed to be done to show the Tribunal the necessary information cannot be obtained, or that the Tribunal’s procedures do not work for those Homes bought out of Receivership. To do otherwise causes workers, mostly women, to pay the price in lost wages between the time a pay equity plan wasn’t maintained and the date of ownership.

42. The Ontario Court of Appeal decision cited above, draws on a Supreme Court decision which is pertinent to this decision:

69The Supreme Court’s decision in Alliance demonstrates the inequity that arises when compensation for female employees is not " tied to that for males on an ongoing basis: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé etdes services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464. In Alliance, the court considered the maintenance provisions of the Quebec legislation, which required that women wait five years before applying for pay equity maintenance. At para. 38, the court identified the systemic nature of pay discrimination and how the impugned legislation created barriers to addressing the problem:

Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men – namely, compensation tied to the value of their work. Men receive this compensation as a matter of course; women, under this scheme, are expected to endure five-year periods of pay inequity, and to receive equal compensation only where their employer voluntarily acts in a non-discriminatory manner, or where they can meet the heavy burden of proving the employer engaged in deliberate or improper conduct. The scheme thus places barriers along the path to equal pay for women.

43. In Conclusion, I would not vary the order of the Review Officer and require Glen Hill Terrace Christian Homes Inc. to do pay equity maintenance, from 2005, in the absence of further submissions from the parties about whether there are other ways to secure the necessary information from 2005 to March 1, 2011. Further, since the Employer has advised the Tribunal through its submission that one of the two Nursing Homes, Glen Hill Marnwood closed in May, 2021, I would further order Glen Hill to preserve all payroll records in its possession for Glen Hill Marnwood Nursing Home.

"Irene Harris" Member