PAY EQUITY HEARINGS TRIBUNAL
PEHT Case No: 0841-21-PE Suzanne Piché, Applicant v Kapuskasing Indian Friendship Centre, Respondent
PEHT Case No: 0957-21-PE Denise Dumais, Applicant v Kapuskasing Indian Friendship Centre, Respondent
PEHT Case No: 0972-21-PE Clarice Wilcox, Applicant v Kapuskasing Indian Friendship Centre, Respondent
BEFORE: M. David Ross, Chair
APPEARANCES: Jordan Lester, Tisha Hasan and Suzanne Piché, appearing on behalf of Suzanne Piché; Denise Dumais appearing on her own behalf; Clarice Wilcox appearing on her own behalf; Guy Wainwright appearing on behalf of the Respondent
DECISION OF THE TRIBUNAL: November 15, 2022
These are applications under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended, (“the Act”).
In these matters, the applicants objected to the respondent’s pay equity plan under section 15(7) of the Act. As such, the pay equity plan in these matters is not considered a “deemed approved” plan pursuant to section 15(8) of the Act.
The applicants claim that pay equity has never been achieved and challenged the basis for why the plan only goes back to 2016.
The parties consented to a sole presiding officer hearing this matter. These matters were consolidated and heard over three hearing dates, September 8, 9, and 28, 2022.
The Lack of Documents in this Proceeding
This proceeding was made much more challenging by the fact that the respondent does not have most of the relevant documents that is needed to demonstrate that the challenged pay equity plan complied with the Act, including the full pay equity plan, the gender-neutral comparison system that was used, the job descriptions used in the evaluations, or any record of how each job class was evaluated.
The applicants, and specifically Ms. Piché claim that relevant pay equity documents were stored in a filing cabinet prior to her departure, but these documents were not located by the respondent.
The Tribunal has considered the evidence that is before it in arriving at this decision. Where there are issues that are affected by the lack of important documents, the Board must consider those issues in context, in consideration of the purpose of the Act, the legal principles that apply to these matters, and with regards to the onus that applies in this case.
The Evidence
The Tribunal heard oral evidence from the three applicants, Karen Stephenson, Cindy Bernard, Peter Sackaney, Jennifer Jones, Karen Tessier, and Jack Solomon. Their direct evidence was put in through witness statements which were adopted by each witness, and counsel had the opportunity to ask questions about issues that had arisen or required clarification since the witness statement was signed. Each witness was then cross-examined. The Tribunal is appreciative of the efficient and focused way that the parties called their evidence and cross-examined the witnesses.
The underlying, undisputed issue in this case is that the respondent did not create or implement a pay equity plan when it was required to have done so by the Act. Ms. Piché, who was one of the former executive directors of the respondent, testified that the respondent mistakenly believed that the Act did not apply to the respondent because it had too few employees. She testified that the genesis of this belief came from speaking with someone from the Pay Equity Commission. However, in or around 2013, the Pay Equity Commission informed the respondent that it was required to have a pay equity plan. Ms. Piché testified that she attended sessions with other Friendship Centres about how to create and implement pay equity plans, spoke to directors of other Friendship Centres about their pay equity plans (I heard evidence from two of them), and raised the issue with the respondent’s Board of Directors about getting direction to form a committee to complete a pay equity plan. However, Ms. Piché testified that such a direction never came from the Board of Directors while she was the Executive Director. Ms. Piché left the organization in May 2017. She filed an application to review services in October 2017 asserting that a pay equity plan had not been completed in contravention of the Act.
The respondent completed a pay equity plan in 2020. The process was started under the oversight of Mr. Solomon and completed under the oversight of a different executive director, Ms. Murphy, who did not appear as a witness. The pay equity plan (“the plan”) was posted in September 2020. The plan that was filed with the Tribunal in this matter is clearly incomplete and missing fundamental information. For example, the plan describes that there are two female job classes that do not have a male comparator, but there is no explanation as to how those classes were compared or what method was used. The plan also states that job classes of equal comparable value were determined by dividing the system into point bands, “50 wide”, but does not describe what those bands are, or which classifications fall within those purported bands. This includes the fact that nowhere does the plan describe which male classes were used as the comparator for each of the female job classes. Following the posting of the plan, the respondent made payments to employees in a significant percentage of its workforce. This demonstrates that based on the respondent’s plan, that many employees in female job classes had in fact been underpaid compared to their male comparators.
The only evidence the Tribunal heard about how the respondent’s pay equity plan was created was from Jack Solomon, who was the respondent’s Executive Director from June 2018 to May 2020. Mr. Solomon’s evidence in chief with respect to the respondent’s plan was:
When I arrived at KIFC no pay equity plan was in place. KIFC had no one on staff who was qualified to do a pay equity plan. To the best of my recollection, the pay equity office contacted me in the fall of 2018 advising that a pay equity plan had to be developed. I advised the Board of KIFC which directed me to proceed. I have been involved in the pay equity process in a previous employment so I had some understanding of it, but I was not qualified to draft a pay equity plan either. I advised the pay equity office accordingly. Then, someone named Jared Saltz from the pay equity office contacted me around December 2019 who advised that he would assist me in developing a pay equity plan and I essentially followed his directions. I then developed the job evaluations for each position at KIFC and submitted them to the pay equity office. I then prepared a spreadsheet as directed by the pay equity office with all the position and which was also sent to the pay equity office. If the documents were not done properly, the pay equity office advised me and I changed the documents to whatever it said to do. A draft pay equity proposal was brought to the Board for approval in March of 2020. Mr. Saltz during the process requested me to search for historical employment files which I did. I also contacted the Revenue Canada to request prior year’s documents as well. As far as I know, no Notice of Inability to Achieve Pay Equity under section 21.2(5) of the Pay Equity Act in which KIFC notified the Pay Equity Office of an inability to compare a female job class to a male job class nor any order of a pay equity officer declaring KIFC to be a seeking employer under section 21.11(1) of the Act ever came in to [sic] existence. As far as I know, KIFC did everything the pay equity office instructed us to do to prepare the final pay equity plan.
Under cross-examination, Mr. Solomon’s recollection of the process about how the plan was created can only be characterized as uncertain. For example, the plan explicitly states that “evaluations were carried out by a committee”. However, Mr. Solomon could not recall who was on this purported committee, or even if one was formally formed. He believed the committee consisted of himself and the respondent’s bookkeeper, but he did not provide any evidence of evaluating any job classes. Mr. Solomon said that he did not create job descriptions or discuss or review any of the job descriptions with any of the incumbents or managers. Instead, he used job descriptions that were attached to program funding (none of those were provided to the Tribunal). He recalled Ms. Wilcox responding to an email that sought members to be on a job evaluation committee but does not recall why Ms. Wilcox was not invited to sit on the committee or whether a response to that offer was ever provided.
Mr. Solomon testified that he sought CRA records for the respondent’s employees. He received records that went back to 1994. Data from those records were provided in a calculation spreadsheet that was entered into evidence. Mr. Solomon’s explanation for why the plan only went back to 2016 was that is what the Review Officer at the Pay Equity Office advised him to do.
There were also significant issues with the calculations contained in a calculation spreadsheet that was entered into evidence. Generally, the spreadsheet showed the hours worked and wages received by employees, which was broken down over several years. However, counsel for Ms. Piché highlighted several examples where the spreadsheet was incorrect on its face. For example, simple calculations like salary divided by hours worked to arrive at an hourly rate were not accurate, and Mr. Solomon could not provide adequate explanations for these apparent errors. The spreadsheet also highlighted some other gender related pay issues, such as examples where male employees were paid a higher wage rate than female employees in the same female job class, and that at least one male employee in a female job class was paid a higher wage rate than Ms. Piché at a time when she performed the duties of the Executive Director, under the Office Manager job title.
Mr. Solomon could not explain why a Notice of Inability to Achieve Pay Equity was not filed (and from his oral evidence, it was apparent that he did not know the purpose of such a document). He could not explain why there were two female job classes identified on the plan without male comparators or how those job classes were evaluated and compared. Again, his answer was that he listened to the Review Officer and followed his instructions.
The Tribunal did not hear evidence from either of the signatories of the plan that was posted on September 4, 2020. From the document it appears that the signatures are those of Ms. Murphy, the executive director at the time the plan was posted, and Mr. Lafontaine, the respondent’s Board president at the time. The Tribunal also did not hear evidence from Ms. Ward who was the bookkeeper who purportedly was involved in the creation of this plan as a committee member.
The respondent did not call Mr. Saltz as a witness, whom the respondent asserted was the actual creator of the plan, on its understanding that Review Officers are not compellable as witnesses under the Act.
The Tribunal heard evidence about the respondent’s workplace environment being one that dissuaded employees from raising issues related to pay equity. Ms. Jones testified that on multiple occasions the respondent’s board of directors or bookkeeper made statements along the lines of the respondent having to shut down, and they would lose their jobs if they pursued pay equity. However, Ms. Jones also testified that the tone of these communications at the outset of the pay equity plan being conducted was positive and encouraging, but that tone changed over time. She specifically identified Ms. Murphy, the bookkeeper, and Mr. Solomon as having made such statements. Ms. Jones testified that the bookkeeper told her that they “were not going to strike it rich” and that they were being greedy. Ms. Wilcox testified that Mr. Solomon said that they were not going to make the same mistake of overvaluing jobs (a process that used the proxy method) that he experienced while at the Cochrane Friendship Centre (the Cochrane Friendship Centre is a former employer of Mr. Solomon). Ms. Wilcox testified that Roxanne, the President of the Board at the time, made several statements along the lines that “they did not deserve pay equity”. Mr. Solomon denied making such statements, but I did not hear from the other individuals.
Ms. Dumais and Ms. Jones testified that they asked the respondent to see how their jobs were evaluated, but no one could provide them with the rationale for how their positions were evaluated. An example that Ms. Dumais provided was that she disputed that her position should be given the lowest score available under the financial responsibility factor because she was responsible for managing budgets. She agreed that she did not have ultimate authority over these financial resources but submitted that it should not have been the lowest value. On this point, during the course of the hearing it appeared that Ms. Dumais was provided part of the evaluation of her job class from the second Review Officer, but the Tribunal was not provided the underlying evidence of how Ms. Dumais job class was evaluated.
The Tribunal heard evidence from the representatives of two neighboring friendship centres about their pay equity plans, and how they were created. These witnesses confirmed that while there might be some differences between the programs provided by the respective friendship centres, they generally serve the same community and provide similar services.
Summary of the Parties’ Submissions
The applicants submitted that the respondent had not established pay equity and had not provided the Tribunal with any documentation that could demonstrate that pay equity had been achieved in accordance with the Act. The gender-neutral comparison system that was purportedly used to evaluate the job classes was not produced, so the applicants do not have the capability to challenge specific ratings, because the respondent does not even know the specifics of how the jobs were evaluated.
The applicants submitted that there was no evidence before the Tribunal that could satisfy it that the job duties and responsibilities of each job class were evaluated in accordance with the statutory requirements because there are no job descriptions and Mr. Solomon testified that he just used job descriptions that were attached to program funding, rather than ensuring that those job descriptions reflected the job duties that were performed.
The applicants submitted that the respondent was obligated to use the proxy method and that the regulation that sets out the proxy method of comparison (O. Reg. 396/93) explicitly refers to native friendship centres. The applicants submitted that it cannot be the case that an employer can refuse to file a Notice of Inability to Achieve Pay Equity to simply avoid achieving pay equity by using the proxy method when no other method is satisfactory.
The applicants submitted that January 1, 2016 was chosen as an arbitrary cut off date, and there is no statutory basis for cutting off the application of the Act on January 1, 2016.
The applicants requested the Tribunal to revoke the review officer’s order; to direct a review officer to complete a pay equity plan for the employer under section 25(2) of the Act, and to order that the respondent file a Notice of Inability to Achieve Pay Equity.
The respondent’s argument focused on onus. The respondent submitted that the onus of demonstrating that the pay equity plan was not compliant with the Act rests with the applicants and submitted they have not provided sufficient evidence to satisfy their onus.
In reply, the applicants relied on the Tribunal’s jurisprudence that confirmed that where a pay equity plan is not deemed approved, the Tribunal requires the employer to explain how the plan was created and it was unable to do so in this case.
Decision and Analysis
The Purpose of the Act
- The purpose of the Act is to redress the systemic discrimination in compensation practices for work performed by employees in female job classes. Section 4(1) of the Act sets out the purpose of the Act:
The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.
- This Act came into force in 1990, 32 years before the date of this decision, yet employees working in female job classes at the Kapuskasing Indian Friendship Centre remain uncompensated for the value of their work vis-à-vis to their male comparators. Not a single employee in a female job class has received a payment under this Act for work they performed prior to 2016, and the respondent cannot explain how it arrived at the pay equity adjustments that it did make. This is not consistent with the purpose of the Act.
Onus
Applications before the Tribunal are “de novo”, meaning that the Tribunal hears all of the evidence and decides cases “at first instance”. The Tribunal does not review the Review Officer’s decision or order on any standard of review; however, section 25(1.1) of the Act is explicit that the Tribunal may confirm, revoke or vary an order.
In applications that proceed before the Tribunal, the applicants bear the ultimate onus of proof. One exception with regards to the evidentiary onus is where the pay equity plan has not been deemed approved pursuant to subsections 14(5) or 15(8) of the Act, as applicable, and the applicant has challenged the process in which the plan was created. In City of Toronto, 2021 CanLII 67627 (ON PEHT), the Tribunal explained that in the face of a complaint that a job classification was not evaluated in accordance with the Act, the evidentiary onus to establish that a pay equity plan and the process that was used to create it was compliant with the Act, rests with the employer. At paragraphs 5 and 16 of that decision, the Tribunal held:
In this case, it is important to note that the pay equity plan at issue is not a deemed approved plan as defined by the Act. The applicants challenged the plan within the time period set out in section 15(7) of the Act. The case law relied on by the parties is distinguishable from the instant case on this fact.
The Tribunal reiterates that it has made no finding or comments whatsoever about the chances of success for the applicants on the merits, and it may be that the respondent may be found to be accurate in how the applicants’ job classes were placed on the grid and no adjustment is warranted. The respondent correctly highlighted that there was no evidence that the applicants evaluated their classes (and as pay equity experts could have) with access to their job descriptions, questionnaires using the GNCS compliant tool either. This will be something that the applicants will have to address during the hearing on the merits. However, in the face of a complaint that a job classification was not evaluated in accordance with the Act, the obligation to establish that a pay equity plan and that the process that was used to create it was compliant with the Act rests with the employer not the applicants at this stage of the proceeding.
(emphasis added)
This rationale makes complete sense from a procedural fairness and natural justice perspective. In these types of cases, the applicants were not the ones who created the pay equity plan and likely have little to no insight into the process that was used to create the plan nor the rationales for why certain ratings were attributed to their job classes. In most cases, this evidentiary onus will be satisfied once the employer explains the process that was used, and so long as there were not errors in the process, the onus then shifts back to the applicants to persuade the Tribunal why the pay equity plan does not comply with the Act.
In the instant case, the respondent did not sufficiently explain to the Tribunal the process of how the plan was created, what gender-neutral comparison system was used, how any of the jobs were evaluated, what male comparators were used for each job class, or even that there were male comparators for two female job classes. Therefore, in this case the Tribunal does not have the ability to understand and consider the relevant facts that could satisfy it that the plan was compliant with the Act. The suggestion that on the facts of this case, these applications should fail because the onus to demonstrate that the plan is not compliant with the Act lies with the applicants, and they have not been able to meet this onus because of the lack of evidence provided by the employer, is illogical.
In any event, Ms. Dumais identified that a rating appeared not to take into consideration elements of her job duties that pertained to the responsibility associated with her job class, specifically financial responsibility. Ms. Jones testified that she approached the respondent and asked for clarification about how her job class was evaluated but the respondent could not provide her with an answer. Accordingly, in the absence of evidence in response, I am satisfied that the applicants have presented evidence that raises concerns with whether the plan considered the statutory factors. Therefore, even if the onus lies with the applicants, the Tribunal is satisfied that they met their onus on the facts of this case given the absence of evidence led by the respondent.
The Proxy Employer Issue
In this case, the applicants submitted that the proxy method should have been used in this process. The proxy method is used where there are an insufficient number of male comparators within an organization to use the job-to-job or proportional value methods of comparison. This ensures that all female job classes are compared to male job classes because a “seeking employer” can compare its female job classes with another organization that has completed its pay equity plan using the job-to-job or proportional value method. To be clear, this does not mean that the seeking employer and proxy employer must use the same gender-neutral comparison system or must pay the same wage rates, there is nothing in the Act that suggests such a conclusion. Rather the proxy job classes are used as reference points for the seeking employer’s pay equity plan. Column 52 in the Proxy Method of Comparison, O Reg 396/93 explicitly lists native friendship centres as a category of employer that can be a “seeking employer” which use a municipality that directly provides social services as a proxy employer for the purposes of completing a pay equity plan. In this case, the evidence provided does not establish that pay equity was achieved, or could be achieved, using the job-to-job or proportional value methods given that the plan explicitly lists two female classes that did not have male comparators and no evidence was provided about how those job classes were evaluated.
The respondent relied on the fact that because it had not filed a Notice of Inability to Achieve Pay Equity with the Pay Equity Office, that it was ineligible to use the proxy method to complete its plan. The applicant rightly pointed out that it would be absurd if a respondent could rely on its own failure to file a required document to alleviate it from achieving pay equity using the proxy method where it could not achieve pay equity using the other methods.
Accordingly, in this case, it is obvious to the Tribunal that the respondent ought to have filed a Notice of Inability to Achieve Pay Equity and used the proxy method to complete its pay equity plan.
Delay, Prejudice, Abuse of Process, and Lack of Records
- A fundamental area of dispute in this case is the fact that the plan only goes back to 2016, and the Review Officer found that pay equity was unable to be implemented prior to 2016 because of a lack of records. With respect to this issue, the review officer held:
A complaint may be dismissed based on delay, prejudice, the doctrine of abuse of process and/or the lack of records regardless of the merits of the case [See: Maitland Manor Health Care Centre v. Mattuci, 2015 CanLII 67576 (ON PEHT) and Windibank v. Corporation of the City of Windsor, 2008 CanLII 88696 (ON PEHT)].
Due to lack of records, the Review Officer found that the Employer does not qualify to be a ‘seeking employer’ to be eligible to do proxy comparisons with a ‘proxy employer’.
The PEHT has instructed employers to take all means necessary to locate employee records. As per the PEHT decision for Maitland Manor Health Care Centre v Mattuci, 2015 CanLII 67576 (ON PEHT), a complaint may be dismissed based on delay, prejudice, the doctrine of abuse of process and/or the lack of records regardless of the merits of the case. In this case, the Review Officer was satisfied that the Employer had made a consistent effort to search for historical documents.
I find that due to lack of records, Kapuskasing Indian Friendship Centre was not eligible to use the proxy method of comparison.
I find that the Employer was unable to implement pay equity prior to 2016.
Normally, the Tribunal would not quote portions of the order because of the de novo nature of these applications, but in this case, the respondent relied on the Review Officers’ representation that pay equity only had to go back to 2016 and the Review Officer’s findings confirming this point. This is a unique case in the sense that the person who purportedly created most of the plan, Mr. Solomon, testified that he just followed the Review Officer’s (Mr. Saltz) instructions, and in essence, it was the Review Officer that created the plan, not the respondent. This is the primary reason that Mr. Solomon says he was not able to provide any explanations about how the plan was created or how the job classes were evaluated.
The respondent also questioned witnesses about why they did not file complaints with the Pay Equity Office sooner. The inference in these lines of questioning was that the applicants should share in some of the blame for why the plan was not posted until 2020, thirty-years after the Act came into force. The applicants testified that they were led to believe that the Act did not apply to the respondent until 2013, but then once that misconception was corrected, they understood that the respondent was working on a pay equity plan, and they were waiting in good faith for the process to be completed. The Tribunal accepts their explanations. It was reasonable for these employees to trust their employer’s word that a pay equity process was going to be completed and that their employer would comply with its legal requirements. Completing a pay equity plan is an arduous endeavour, and these plans are not created overnight as it takes time to properly create a pay equity plan.
Accordingly, on the facts of this case, the Tribunal does not find that there was any abuse of process or inordinate delay on behalf of the applicants. On the issue of abuse of process, I find it necessary to point out that the Tribunal’s jurisdiction to dismiss applications because of delay causing an abuse of process is rooted in the Statutory Powers Procedure Act, R.S.O. 1990, c. S22(“SPPA”) and not in the Act.
The SPPA applies specifically to proceedings before a statutory tribunal, such as the Pay Equity Hearings Tribunal:
3(1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.
As such, since the Review Officer only quoted the Tribunal’s jurisprudence (which relied on authority provided by the SPPA) when she found that pay equity was impossible to be achieved prior to 2016, it is unclear to me where a Review Officer’s authority to limit the application of the Act in these circumstances comes from. As the Pay Equity Office was not a party to this proceeding, the Tribunal makes no findings on this issue, only flag it as an issue that may arise in future proceedings before the Tribunal that may require explanation.
The oft quoted decision when the Tribunal has been requested to dismiss an application for delay that causes an abuse of process is Maitland Manor Health Care Centre v Mattuci, 2015 CanLII 67576 (ON PEHT). In that decision, the Tribunal explains:
- The issues raised for determination in this decision are:
(a) Has there been unreasonable and inordinate delay in this case resulting in substantial and irreparable prejudice to Maitland Manor, amounting to an abuse of process?
(b) Has there been unreasonable and inordinate delay in this case which would bring Ontario's pay equity system into disrepute? and
(c) What is the appropriate remedy in this case?
The statutory provisions relevant to the determination of the above three issues are subsection 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S22 (“the SPPA”) and subsection 25(2)(d) and (g) of the Act. Subsection 23(1) of the SPPA reads:
(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
Clearly, subsection 23(1) of the SPPA confers upon the Tribunal the power to make orders or give such directions as it considers proper in order to prevent an abuse of the Tribunal’s processes. The doctrine of abuse of process includes unwarranted delay. The Supreme Court of Canada has stated that an unacceptable administrative delay may amount to an abuse of process when significant prejudice results to a party, even where the fairness of the hearing may not be compromised. Whether a delay amounts to an abuse of process 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 asserting delay contributed to the delay, and the various rights at stake in the proceedings. We turn to these factors below.
Abuse of process arising from delay will be found not only in cases where the delay is found to be prejudicial, but as well in instances where the dispute resolution system itself would suffer disrepute. There is a strong public interest in promoting the timely and final resolution of pay equity disputes. The workplace parties are entitled to have their disputes resolved without undue delay. Delay multiplies costs and causes unfairness and frustration. Although the Act itself does not impose any particular time frame for the referral of an application to the Tribunal, it does require employees to raise concerns about posted pay equity plans in a timely fashion. If the Tribunal allows the anonymous employee’s complaint to proceed in this case, there is a real risk that other complainants will feel emboldened to raise objections long after a pay equity plan has been “deemed approved”. The Tribunal should discourage the raising of such ghosts from the past.
On review of the Tribunal’s jurisprudence, the Tribunal has only invoked this abuse of process doctrine to dismiss applications in cases where the respondent’s pay equity plan had been “deemed approved”. I am unaware of any instance where the Tribunal invoked this doctrine in a case where the pay equity plan was not deemed approved, such as in the instant case. This again makes complete sense. Where a deemed approved plan exists, the Tribunal relies on the fact that an employer completed a pay equity plan, any pay equity adjustments and payments were made at that time, and no one exercised their right under the Act to object to the pay equity plan when it was posted. The employees (whether represented by a union or not) then, by not challenging the plan, or appealing an order in a timely manner, led the employer to believe that there were no concerns with the plan, and then a considerable period passed before issues are later raised. The resulting delay causes an inherent prejudice to the employer who had no reason to understand that there were concerns with the plan, and relevant documents get destroyed and memories fade. The Tribunal conducts a contextual analysis when it considers whether an application should be dismissed because of an abuse of process due to delay or lack of records, and I heard nothing during the course of this proceeding that would cause me to consider extending the application of this doctrine to applications that involve pay equity plans that were challenged within the timeframes set out in the Act.
The respondent said that the 2016 date was chosen because the initial Review Officer told Mr. Solomon that it was satisfactory to only go back to 2016 (although the purported email that was relied on by the employer was never put into evidence before the Tribunal). However, there is credence to that evidence because the second Review Officer who issued the order also concluded that she was satisfied that the Employer made a consistent effort to search for historical documents prior to January 1, 2016 and found that this plan was compliant with the Act.
In the Tribunal’s view, the suggestion that pay equity obligations do not extend prior to January 1, 2016, on the facts of this case is incoherent and inconsistent with the purposes of the Act.
Ms. Piché filed an application with the Pay Equity Office in 2017. At that time, the respondent knew that it did not have a pay equity plan and was required to have one. Therefore, at an absolute minimum, once Ms. Piché’s application was filed and Review Services became involved in 2017, the respondent had an obligation to preserve all its relevant records. This included any pay equity information that the former Executive Director compiled during her tenure.
Objectively, as of the date Ms. Piché filed her application, the respondent ought to have had, at an absolute minimum, six years of payroll records because the Canada Revenue Agency requires all payroll records to be retained for no less than 6 years. The Employment Standards Act, 2000, S.O. 2000, c.41, also requires all records pertaining to vacation pay (which requires wages to be recorded) to be retained for no less than five years. As such, the earliest conceivable date that could possibly have been considered where the lack of records could start being relied on as causing prejudice would be sometime in 2011. To find otherwise would only serve to permit the notion that in the face of a pay equity complaint, employers could shred their payroll documents and relevant pay equity information and then simply claim that it is impossible to achieve pay equity because the records no longer exist. This would be absurd, inconsistent with the purpose of the Act, and only serve to exacerbate the historical pay disadvantage that employees in female job classes have experienced at an employer that has not completed a pay equity plan contrary to the statutory requirement to do so.
This issue gets further complicated by the fact that there is no limitation period in the Act, but there is also not a corresponding obligation to keep records, or any guidance in the Act about how long records must be kept. This appears to be an issue unique to the Act, and admittedly is a significant challenge that the Tribunal is having to address and considers with increasing frequency. However, again, given the purpose of the Act, the analysis of when it would be permissible to “cut off” pay equity obligations because of a lack of records is a contextual one. The factual context of each case will determine whether a respondent can rely on a lack of records to claim that reviewing whether pay equity can be achieved has been made impossible.
The context that the Tribunal considers the fact of whether there is a deemed approved pay equity plan. Where a deemed approved plan exists, as discussed above, the Tribunal has the comfort that a pay equity plan was completed, the required payments were made, and the collective group of employees (whether represented by a union or not) did not object to the pay equity plan. The lack of a challenge permits the inference that there were no apparent errors in the plan, or alternatively, that the employees’ collective silence led the employer to believe that it did not need to keep payroll and other relevant documents past the required time periods.
The context is different in a case where there is no evidence that pay equity was ever achieved, and there is no deemed approved plan, such as in the instant case. Pay equity is not a suggestion but a statutory requirement that has existed for more than three decades. It has been three decades since the Act came into force, and any employer that has not completed a pay equity plan and has not made any payments that may be owing, has benefitted from discriminatory pay practices over the past thirty years. To be straightforward on this issue, the Tribunal has little sympathy for the position that it will be hard to gather the information needed to ameliorate the historical pay disadvantage that employees in female job classes have experienced, or that making payments that go back several years, or decades, will be very expensive. The cost of a pay equity plan is not a factor that the Tribunal can consider as it is not a statutory one. There is no other way to put it than an employer who has not complied with the Act which came into force in 1990 is the primary architect of any misfortune associated with the delay in complying with the Act. If the employer’s pay practices were not discriminatory, and female job classes were paid relatively equal to their male comparators, then after completing the plan, there would not be payments owing and no additional costs. However, if payments are owing, those payments are required to ameliorate a historical discriminatory pay practice and to satisfy the stated purpose of the Act.
In this case, there are several pieces of evidence before the Tribunal that demonstrate that it is far from impossible to get the requisite information to complete a pay equity plan that goes back past 2016.
The first is that there are CRA records that go back to 1994. Mr. Solomon was able to retrieve such records.
The second is that the there are several employees, current and former, who can speak to their job responsibilities, and the responsibilities of others during their tenure with the respondent.
The third is that there are neighbouring friendship centres that completed their pay equity plans. Those plans can be used as guideposts for how the respondent’s plan could be created. Many of the job classifications will be very similar, and if there are issues, employees and incumbents can be interviewed to determine where deviations in job descriptions may exist.
The fourth is that native friendship centres are explicitly listed as a seeking employer that can seek proxy pay equity information from municipalities directly providing social services, in this case, the Town of Kapuskasing.
There are probably other sources of information available as well that can be utilized. The above are only examples of categories of information that I can note as a result of hearing and reviewing the evidence in this case.
Disposition and Orders
The Tribunal finds that the respondent has not completed a pay equity plan that is compliant with the Act.
The Tribunal hereby revokes the Review Officer’s Order dated June 23, 2021.
The Tribunal directs the respondent to file a Notice of Inability to Achieve Pay Equity forthwith.
The Tribunal exercises its authority under section 25(2)(a) of the Act to order that a review officer prepare a pay equity plan for the employer’s establishment and that the employer pay all costs of preparing the plan. It would be preferable, to avoid the potential claim of a perception of bias, if the review officer assigned to creating this plan is not anyone who was involved with any of the three applications to review services in these matters. The review officer may retain the services of experts that they consider necessary to assist in preparing the plan pursuant to section 25(3) of the Act.
Employees of the respondent retain their rights pursuant to section 25(4)(d) of the Act once the new pay equity plan is posted.
Any pay equity payments already made by the respondent, may be set off against any pay equity adjustments that the new pay equity plan may find owing.
The respondent is directed to post this decision in a place where it will come to the attention of its employees for a period of 45 days.
"M. David Ross" M. David Ross, Chair