Glen Hill Terrace Christian Homes Inc. v. Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110, 2021 CanLII 81830

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

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

DECISION OF THE TRIBUNAL: August 26, 2021

Decision

1This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended ("the Act").

2Section 4.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, permits a panel of one to issue this decision.

3By decision dated August 3, 2021, the Tribunal directed submissions in response to the respondent's request to dismiss this application on a prima facie basis. The applicant has filed its submissions as directed.

4In this case, the Pay Equity Office reviewed the applicant's pay equity plan, and specifically considered whether pay equity had been maintained. The Review Officer found that a pay equity plan was in place as of 1995, but there was no evidence that pay equity has been maintained since 2005. It is noteworthy that the 1995 plan adopted the "$1.50 Plan" which many long-term care and nursing homes did, which did not use a gender-neutral comparison system. The Review Officer made several orders with respect to the applicant's pay equity obligations:

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 O 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;

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.

5The respondent has submitted that the applicant's position with respect to these orders cannot be tenable given the Court's decision in Participating Nursing Homes, 2021 CanLII 149 (ONCA).

6The applicant has submitted that there are triable issues before the Tribunal in this case and it should not be dismissed on a prima facie basis. The applicant also submitted that the Order from 2005 to March 1, 2011 are impossible to comply with because it does not have the records prior to it purchasing these entities. The applicant requested the Board to defer hearing argument with respect to whether the maintenance of the plan requires proxy comparison until after the Supreme Court of Canada has either heard the appeal of the Participating Nursing Homes, supra, or denied leave to appeal.

7In this case, the issues can be subdivided into three categories:

a) Whether the applicant must maintain pay equity;

b) How the applicant is to demonstrate pay equity has been maintained; and

c) Whether the passage of time has rendered some part of order impossible to comply with.

8The answer to the first question is plain and obvious. The applicant must maintain pay equity once it is established. This issue is fully resolved before the Tribunal and confirmed by the Court. Section 7 of the Act states:

7. (1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

9The applicant's pay equity plan adopted the $1.50 adjustment that most employers did in this industry in or around 1995. The Tribunal has held that this $1.50, while it may have achieved pay equity in 1995, is flawed in the sense that it did not use a gender-neutral comparison system ("GNCS") to evaluate job classes as required by the Act. At paragraph 184 of the Participating Nursing Homes, 2016 CanLII 2675 (ON PEHT), the Tribunal held:

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.

10Therefore, the applicant cannot satisfy the Tribunal that pay equity has been maintained based on its 1995 plan. We simply do not know what we do not know with respect to whether pay equity has been maintained. The Officer's orders at iii) and iv) directing the applicant and respondent to work out a proper GNCS tool must be completed, and it must be completed soon. Too much time has already passed for this step of the process not to have been completed and at a minimum the internal jobs to have been evaluated. The establishment of a GNCS is necessary at the outset of the process and is not reliant on what the Tribunal decides with respect to the other issues. The parties shall notify the Tribunal when these orders have been completed. If this process is not completed within 6 months, the parties shall write to the Tribunal and explain why this has not been accomplished.

11The second issue involves the fact that leave has been sought to the Supreme Court of Canada in Ontario Nurses' Association v Participating Nursing Homes, 2021 ONCA 148. It makes no procedural sense for the Tribunal to consider issues in this case that are the subject of that appeal process at this time, especially given that the parties have several steps to complete first. Therefore, the issues relating to how maintenance is to be maintained (either by proxy or otherwise) will not be considered until the Supreme Court has had the opportunity to consider the appeal or has denied leave to appeal.

12The third element of this case is whether the applicant can comply with the orders going back to 2005. The applicant has submitted that it has access to the pay records going back to March 1, 2011. The applicant has relied on the Tribunal's jurisprudence that has held that it is unfair to require an employer to comply with an order because documents have been lost or destroyed as a result of a significant passage of time.

13The respondent shall have until September 10, 2021, to file any submissions it wishes the Tribunal to consider with respect to the applicant's position that it is unable to comply with the orders prior to March 1, 2011.