Sandra Kendall v. Sinai Health System, 2023 CanLII 17263

Pay Equity Hearings Tribunal

PEHT Case No: 2754-20-PE

Sandra Kendall, Applicant v Sinai Health System, Respondent

BEFORE: M. David Ross, Chair

APPEARANCES: Thomas McRae, Adam Lawson and Sandra Kendall appearing on behalf of the applicant; Carolyn Kay, Jacqueline James and Barb Griffin appearing on behalf of Mount Sinai

DECISION OF THE TRIBUNAL: February 17, 2023

1. This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”). At the outset of this case, the parties agreed that this proceeding could be heard by a single presiding officer.

2. In this application, the applicant has asserted that the respondent failed to maintain pay equity, did not post a pay equity plan, did not provide the applicant with a list of her comparators in a timely manner, failed to observe natural justice in addressing her pay equity concerns, and terminated the applicant for raising her pay equity concerns. In argument, the applicant argued that the respondent was obligated to post a new plan because of changed circumstances when Mount Sinai merged with Bridgepoint Hospital. The applicant seeks compensation for the amounts she ought to have received if pay equity was maintained, and to be reinstated into her position.

3. The respondent submitted that it has had a pay equity plan since 1990 and that it has maintained pay equity in accordance with the Act. The respondent submitted that the termination of the applicant’s employment had nothing to do with any pay equity concerns and was solely an unfortunate biproduct of hospital-wide financial issues and the applicant’s position was terminated along with approximately 20 other employees across the organization.

4. The parties relied on Ontario Nurses’ Association [1991] O.P.E.D. No. 52; Parry Sound District General Hospital, 1995 CanLII 7205 (ON PEHT); Peterborough (City), 1996 CanLII 8060 (ON PEHT); Peterborough (City), 1997 CanLII 12087; Windsor-Essex County Health Unit, 2010 CanLII 61201 (ON PEHT); Participating Nursing Homes, 2021 ONCA 148; in the course of their oral submissions.

The Chronology of Events

5. The Tribunal heard viva voce evidence from the applicant, Barb Griffin, and Dr. Maureen Shandling. The Board also received a substantial amount of documentary evidence that were filed by the parties.

6. The Tribunal has considered all the materials filed with the Tribunal and submissions, including the case law provided by the parties. In this case, the evidence is too voluminous, nor is it necessary, to be reproduced in this decision in its entirety.

7. The respondent’s original pay equity plan is dated May 31, 1990. The applicant’s job class, the Director, Medical Library, was evaluated on or around June 22, 1989. This plan was deemed approved in the middle of 1990, 32 years prior to this decision. Furthermore, since applicant’s job class has been compared job-to-job to the male job classes within the same band, the proportional value and proxy methods of comparison are not applicable to the instant case.

8. The applicant started working with the respondent as the Director, Medical Library in January 2000. The applicant’s salary started at $55,000 at the time she was hired, and she was to receive two increases by January 1, 2001, which brought her salary to $60,000.

9. Based on the evidence, by all accounts, the applicant was a great employee, and no one suggested otherwise. The applicant was awarded the Canadian Hospital Librarian of the Year in 2018, which in part was related to her publications and work on projects in other continents.

10. The applicant was also responsible for overseeing the digitization of the medical library during the course of her employment.

11. In 2004-2005, the respondent underwent a subsequent job evaluation process using a job evaluation system created by Watson Wyatt and Company. During this process, the applicant filled out a job questionnaire that was used to evaluate her job class using this system. The applicant’s job was evaluated and placed in band 6, which carried a maximum salary of $96,000, and contained approximately two dozen male job classes.

12. In 2008, the applicant requested her job class’s compensation to be reassessed. The basis for the applicant’s request was because she was aware that her peers employed in other medical libraries earned a higher salary than she did. In 2010, based on this request, the respondent reviewed the applicant’s job description and confirmed that it was appropriately placed in band 6.

13. In 2012, the applicant again requested that her salary be reviewed. In an email dated September 27, 2012, the applicant wrote to her direct supervisor:

Jackie: If the provincial government passes another wage freeze is there a way for me to pursue being compensated the same as the Director at UHN, SickKids, CAMH and St. Mike’s? Fro [sic] the example of CAMH the previous director w [ sic] male and I guess I could look at pay equity?

14. Dr. James responded that she would raise it with human resources, and ultimately responded that pay equity was an internal comparison, not an external one.

15. In 2015, Mount Sinai merged with Bridgepoint Hospital. As a result, the respondent added a unionized employee to the people she supervised and oversaw a patient library located at Bridgepoint.

16. By 2016, the salary maximum for band 6 had been raised to $105,000.

17. At some point around 2015 or 2016 (the evidence is not entirely clear when), the applicant requested a list of her male comparators, and again requested an answer for why the salaries in the library were lower than other medical libraries in the City of Toronto. In 2019, she raised concerns about the competitiveness of the salaries in her department as she had lost a staff member to another hospital. The respondent ultimately provided the applicant with a list of three comparator positions from within band 6, albeit after an unexplainable delay that can only be categorized as responding to the request “falling through the cracks”.

18. Also in 2019, the respondent was experiencing a budgetary shortfall, and department heads were asked to reduce their budgets by at least 2%. The respondent first offered voluntary exit packages across the hospital, and then when there was not enough uptake on these offers, it terminated the employment of about 20 employees. The applicant’s position was one of these jobs that was terminated.

19. The applicant filed an application for Review Services on May 25, 2019. In the application, the applicant raised that she felt that her job was not evaluated properly. Also in this application, the applicant identified a male incumbent in the pharmacy department who she believed to be her proper comparator.

20. In 2019, the respondent implemented a new job evaluation process using the Mercer System. The applicant’s position was evaluated as part of the pilot for this new job evaluation system. The evaluation resulted in no increase to the band for the applicant’s job class.

Reprisal

21. Section 9(2) of the Act prohibits employers from terminating employees because they seek to enforce their rights under the Act.

22. The applicant’s position is that her employment with the respondent was terminated because, at least in part, she raised pay equity concerns with the respondent. The applicant also requested the Tribunal to draw an adverse inference from the fact that the respondent did not call Dr. James, the applicant’s direct supervisor, whom the respondent initially pled made the decision to terminate the applicant’s employment.

23. The respondent asserted that the decision to end the applicant’s employment had nothing to do with her periodically raising pay concerns. The respondent submitted that the termination was an unfortunate biproduct of organization-wide budgetary pressures, which resulted in a corresponding reduction in labour costs across the organization. The respondent submitted that it would be inappropriate to draw an adverse inference because it called the two witnesses who made the decision to terminate the applicant’s employment, and after hearing the evidence it was evident that Dr. James did not make the decision to terminate the applicant’s employment.

24. On this issue, the respondent called Barb Griffin and Dr. Shandling who explained that the termination of the applicant’s position was because of an organization wide reduction in costs caused by budgetary pressures. The witnesses explained that an organization wide voluntary exit offer was offered, including to the applicant, and when not enough employees accepted the offer, they were forced to further reduce their labour costs by terminating the employment of approximately 20 additional employees. Dr. Shandling explained that her portfolio at the hospital is quite small in respect of how many employees could be subject to a layoff, as most of her reports are physicians, and they were of the view that the applicant’s job duties could be reallocated. Therefore, the decision was made to underfill the director role and reallocate some of the supervisory responsibilities to a lower rated, and lower paid position (approximately $30,000 less than the Director, Medical Library). As such, the difficult decisions to terminate the applicant’s employment, and to eliminate the Director, Medical Library position, were made. Dr. Shandling testified that she discussed the termination with Dr. James but was steadfast that Dr. James did not raise any pay equity issue as a reason to eliminate the Director, Medical Library position. Ms. Griffin was also steadfast in her testimony that at no point was pay equity factored into the decision to terminate the applicant’s employment and provided a name redacted list of the 20 employees who also had their employment terminated because of these budgetary constraints.

25. The applicant’s evidence on this issue was speculative and inferential. This is not surprising, nor blameworthy, as in most cases where reprisal is alleged, there is no “smoking gun” that an applicant can lead direct evidence about to prove that their termination was because of improper motives. As such, subsection 25(7) of the Act imposes a reverse onus on the respondent employer to explain the reasons for the termination and to persuade the Tribunal on a balance of probabilities that the termination was in no part related to the applicant’s exercise of her rights under the Act.

26. In this case, after considering the evidence and the parties’ submissions, the Tribunal is satisfied that the termination of the applicant’s employment was not related to her raising any pay equity concerns. I find Ms. Griffin and Dr. Shandling were credible witnesses and accept that the reason for the termination was due to budgetary constraints across the hospital, and that the applicant was not targeted because she had raised pay equity issues with the respondent periodically over her 19 years of employment.

27. The Tribunal also declines to draw an adverse inference from the respondent choosing not to call Dr. James. While the Tribunal acknowledges that the respondent initially pled that Dr. James made the decision to terminate, the respondent was obligated to call witnesses to explain the reasons for the termination to discharge its onus. The respondent called two witnesses who testified that they were the ones who made the decision, not Dr. James. They testified that pay equity issues played no role in the termination and was not even known to have been an issue to them. They testified that they consulted with Dr. James, and Dr. James did not raise pay equity concerns at all during these discussions. As such, the Tribunal is satisfied that the respondent met its obligation to provide the reasons for the termination and the onus to demonstrate that the termination was not related to raising pay equity concerns. Lastly, it is always within a party’s purview to call a witness if they believe that the witness’s testimony would be helpful to their case, so it was open for the applicant to call Dr. James as a reply witness.

Did the Respondent Fail to Post a Pay Equity Plan As Required?

28. The respondent has posted its pay equity plan. It posted its original plan in the early 1990s as required by the Act. The applicant attempted to challenge the validity of the 1990s plan on the first day of hearing. The respondent objected to this issue being raised as it had not been raised before Review Services and had not been pled. By decision dated June 13, 2022, the Tribunal precluded the applicant from challenging the 1990 plan because of the well-established jurisprudence that the Tribunal should not assume jurisdiction over issues that were never raised before Review Services.

29. Accordingly, the Tribunal finds that the respondent complied with the Act when it posted its pay equity plan in 1990 as required by the Act. There is no statutory obligation to post amendments to a pay equity plan, subject to section 14.2 of the Act, and as such, the Tribunal does not find that the respondent did not violate the Act with regards to failing to post a pay equity plan.

Did Changed Circumstances Require the Respondent to Post an Amended Plan?

30. Section 14.2 of the Act explains that an employer may amend and post a new pay equity plan where changed circumstances has rendered the existing pay equity plan no longer appropriate. It states:

In an establishment where no employee is represented by a bargaining agent, if the employer is of the view that because of changed circumstances in the establishment the pay equity plan for the establishment is no longer appropriate, the employer may amend the plan and post in the workplace a copy of the amended plan with the amendments clearly indicated.

31. Section 14.2 is a discretionary provision. The discretion lies with the employer about whether to invoke this provision. Since this requirement to deem a plan no longer appropriate and post an amended plan is at the sole discretion of the respondent, the Tribunal is not in the position to evaluate whether the respondent “ought” to have amended and posted a new plan.

32. In this case, the respondent has since voluntarily implemented two separate non-union job evaluation processes. Part of these processes are to comply with the respondent’s obligation to ensure pay equity has been maintained, and to make necessary adjustments where required. The decision to engage in such arduous job evaluation processes every 15 years or so, should be lauded and encouraged, as it is within the spirit and intent of the Act and the obligation to ensure that pay equity has been maintained.

Did the Respondent Breach the Act by Not Providing the Applicant with Comparators in a Timely Manner?

33. The applicant alleged that the respondent failed to provide her with a list of her comparators in a timely manner. The applicant testified that she had to ask the respondent repeatedly for information about which male job classes her position was compared to.

34. The respondent did provide the applicant with a list of comparators, albeit after a lengthy, unexplained delay.

35. Section 1(3) of the Act requires employers to provide a copy of the pay equity plan to any employee bargaining agent who requests a copy so long as they are not represented by a bargaining agent. Section 1(3) of the Act states:

1(3) The employer shall provide a copy of every document posted in the workplace under this Act,

(a) to the bargaining agent, if any, that represents the employees who are affected by the document;

(b) to any employee who requests a copy of the document, if the employee is not represented by a bargaining agent and the employee is affected by the document

36. There is no time limit regarding either when an employee can request the documents or when the employer must provide it to satisfy a request under section 1(3) of the Act. However, the Act cannot be interpreted to mean that an employer would be able to delay providing a copy of the plan indefinitely so long as the information is eventually provided, and as such the Tribunal must determine whether the disclosure was made within a reasonable period of time to comply with the purpose and intent of the provisions of the Act.

37. The Tribunal is also of the view that a request for a subset of the information contained in the plan is captured by section 1(3) of the Act. In this case, had the applicant requested the entire plan, she would have been provided with the male comparators for her job class as a result. As such, the fact that the applicant only requested a list of her male comparators rather than the entire plan would not alleviate an employer from its statutory obligation to provide information to an employee requesting said information pursuant to section 1(3) of the Act.

38. The Tribunal finds that the respondent did not provide the information contained in the pay equity plan to the applicant in a reasonable period following her request. The Tribunal did not hear a satisfactory reason for the delay, and it can only be characterized as the request “falling through the cracks”.

39. Ultimately, the applicant was provided with a list of male comparators, and in this proceeding the Tribunal was provided with the list of approximately 20 male job classes that were included in band 6. Especially given the other findings in this decision, the remedy for the Tribunal’s finding that the comparators were not provided in a timely manner is declaratory.

Did the Employer Fail to Observe Natural Justice in Addressing Pay Equity Concerns?

40. The applicant has requested a declaration that the employer failed to observe natural justice in addressing her pay equity concerns. On the assumption that the Tribunal has the jurisdiction to make such a finding or declaration, and the respondent had an obligation to provide natural justice to the applicant (to be clear, the Tribunal makes no finding about whether it has the jurisdiction to make such a finding on those issues), the Tribunal finds that the evidence would not support such a conclusion.

41. The applicant’s concerns were addressed by the respondent, and the applicant’s recourse, including if she felt that the responses were taking too long, was to file an application with Review Services, which she ultimately did.

The Choice of Male Comparator

42. In this case, the applicant spent a disproportionate amount of her time focusing on a single male job class, and specifically the circumstances of a single incumbent within that job class. Since that incumbent was not provided notice of this proceeding, I find it inappropriate to name them in the decision.

43. The crux of the applicant’s focus was that this incumbent’s job class was also placed in band 6, and then during the relevant period, he received a raise that brought his salary over the salary maximum for band 6. It was then discovered that his job class was reclassified to band 7. The applicant argued that this male job class was the appropriate male comparator, and the comparison between the treatment of his job class and her job class is indicative of the historic systemic discrimination that the Act is meant to protect against.

44. The respondent led evidence that the male job class in question received a salary increase because there were significant salary compression issues in his department, and that his job class received additional responsibilities because of the elimination of a higher-level position in his department. The respondent submitted that the facts are dissimilar to the applicant’s situation, and in any event, the entire issue is a red herring, because there are another 20 or so male job classes within band 6. The respondent highlighted that the Act does not require an employer to pay female job classes at the highest rate of the male comparators in the same band, rather the complete opposite.

45. Section 6(3) of the Act explicitly states that pay equity is achieved when:

If more than one comparison is possible between a female job class in an establishment and male job classes in the same establishment, pay equity is achieved when the job rate for the female job class is at least as great as the job rate for the male job class,

(a) with the lowest job rate, if the work performed in both job classes is of equal or comparable value; or

(b) with the highest job rate, if the work performed in the male job class is of less value.

(emphasis added)

46. In this case, the applicant’s job class has about 20 male job classes that fall within band 6. Applicants do not have a statutory right to choose their job class’s male comparator. Pay equity is an exercise of how to compare apples and oranges. Comparability is determined by comparing the value of job classes after evaluating them using an objective gender-neutral comparison system. Comparability of job classes is not determined by subjectively identifying other job classes that “appear” to the applicant as similarly situated and asking the Tribunal to compare those job classes.

47. Accordingly, the fact that the applicant’s job class has been evaluated using a gender-neutral comparison system and placed in a band with approximately two dozen other male job classes means that the applicant’s reliance on the specific circumstances of one male job class is immaterial to the issue of whether the respondent has maintained pay equity.

Market Comparisons

48. Pay equity does not involve comparing the wage rates of similar job classes employed at other competitors/other institutions in the same sector. This misunderstanding was prevalent in this dispute.

49. It was obvious from the pleadings, the documents, and the testimony, that the most significant aspect of the applicant’s “pay concerns” were related to her salary as compared to her peers at other institutions, as opposed to pay equity issues within the respondent’s organization.

50. Market competitiveness is simply not a factor that is considered when determining whether pay equity has been achieved or maintained, except in the most limited exception set out in subsection 8(1)(e) of the Act. That exception involves a situation where a skills shortage has caused a temporary inflation in compensation because the employer is encountering difficulties in recruiting employees with the requisite skills for positions in the job class. That exception does not exist in this case. The Act does not contemplate, nor require, an employer to compare the compensation of a female incumbent or job class within its organization to a male incumbent or job class at another organization.

51. The Act also does not prescribe a universal gender-neutral comparison system that all employers must use. The Act affords significant discretion to employers to choose and implement a job evaluation system of its choice so long as it uses a gender-neutral comparison system, and that system must consider the four statutory criteria. When this fundamental principle of the Act is considered, it makes complete sense why the Act does not, and has never been intended to be applied across different employers using apples-to-apples comparisons.

52. To complicate matters of market comparisons further, employers choose what salary is attributed to each band, and where to draw the line between bands. Relative bargaining strength of employees and trade unions vis-à-vis the employer also plays a major role in what compensation is paid to employees. Furthermore, non-wage benefits, such as health and dental benefits, pension, vacation, and sick plans, also influence what salary is ultimately paid to an employee. Therefore, even when an employer is using the proxy method of comparison because they cannot achieve pay equity using the job-to-job method, or proportional value method, it is not as simple as just looking at the absolute salary of the job class at the proxy employer.

53. The risk of undercompensating (or being perceived to be undercompensating) employees is of course the threat or increased likelihood that an employee resigns and accepts employment with one of these organizations that provides (or is perceived to provide) more competitive compensation. This is exactly what the applicant described as her concern in her 2018 email where she stated that the respondent may have lost an employee in her department because of compensation concerns:

I wrote to my supervisor Dr. J James as a result of not receiving a salary increase to ask to do a market comparison of my role. Additionally I asked about pay equity as an option. Dr James stated the comparators had to be within the organization for pay equity. I responded by stating the comparators I referred to (UHN, St Mikes and CAMH) were provided in conversation as market comparators.

54. However, at the risk of over repetition, the concern raised by the applicant demonstrates that her concern about market competitiveness, and then identified that pay equity might be an option to increase compensation to be more in line with the respondent’s competitors. This communication in 2018 does not come across as the applicant’s interest being rooted in a pay equity concern, namely an allegation that the respondent’s pay equity plan was not compliant with the Act, rather that she was proposing pay equity as a different mechanism to justify increases to her job class and that of her subordinates’ job classes.

Did the Respondent Fail to Maintain Pay Equity?

55. The applicant has alleged that the respondent failed to maintain pay equity with respect to her position as required by section 7 of the Act. The applicant claims that her job was so unreasonably evaluated that it cannot be said that the statutory criteria of effort was considered, and that there were several subfactors in which she ought to have been scored at least one point higher, which would have put her into the next higher band.

56. The respondent submitted that pay equity was established in the early 1990s and has been maintained in accordance with the Act. The respondent submitted that the applicant’s job class was evaluated using a gender-neutral comparison system, and all of the statutory criteria were considered, but the result was that the applicant’s job class was not revaluated into a higher band.

57. This case is a textbook example of why the jurisprudence is clear that the Tribunal does not engage in the “second guessing” of deemed approved pay equity plans unless the applicant can demonstrate that statutory criteria were not considered, or that the evaluations were unreasonable to the point that it requires the Tribunal to intervene to fulfill the objectives of the Act.

58. In Centennial College, 2002 CanLII 49436 (ON PEHT), the Tribunal described the job evaluation contemplates a range of choices, and employers are required to examine all of the jobs, and the evaluations are not carried out in isolation. At paragraph 26. The Tribunal held:

59. The comparison of jobs is a task, or rather a series of tasks, that contemplates a range of choices. Moreover, the evaluation of a job class is not carried out in isolation. The Act requires employers to examine all of the jobs in its establishment and measure them relative to one another. A complaint that one job should have been evaluated higher is not meaningful without more. The Applicants have not pleaded any facts that would cause us to conclude that Centennial College’s evaluation of the Applicants’ job class was unreasonable.

[emphasis added]

59. At paragraph 16 of Brant Community Healthcare, 2017 CanLII 37589 (ON PEHT), the Tribunal held it should not embark on an exercise of “second guessing” once a pay equity plan has been deemed approved:

The Applicants do not assert that the Union and Employer have failed to evaluate the work of the Unit Clerk job class based on the criteria set out in section 5 of the Act, namely the “skill, effort and responsibility normally required in the performance of the work and conditions under which it is normally performed.” Instead, the sum total of their argument is that the Union and Employer did not come to the conclusion that the Applicants would have arrived at had they been the ones to conduct the analysis. The Applicants’ specific references (in their written submissions) to job duties performed, accompanied by an assertion that the described duties are “at least equal to or exceed the duties of the two comparators” invites the Tribunal to embark upon an exercise of second guessing the findings of the Union and Employer, which is inappropriate (See Ottawa Heart Institute, supra, at paragraphs 12 and 17). The same is true of the assertion that the Applicants disagree with the conclusions respecting two of the 10 valuation factors (as set out in the original application). Given that the Tribunal accepts that there is a range of reasonable evaluations of a job classification, it would be futile for this panel to embark upon such an exercise because the ultimate conclusion that the Applicants are urging us to make – a possible finding that this panel would have evaluated the job class differently – would not lead to a finding that the Union and Employer’s evaluation violates the Act and ought to be disturbed.

[emphasis added]

60. The respondent led evidence about the process it uses to evaluate job classes, and specifically how the applicant’s job class was scored in consideration of each of the ratings that were challenged by the applicant.

61. Furthermore, Ms. Griffin was asked if she heard anything during the applicant’s testimony that raised flags about whether the job was evaluated properly. Ms. Griffin testified that in her opinion, given the in-depth testimony of the applicant, there were a few factors that may have been overrated rather than underrated, and identified the communication subfactors specifically where she believed this to be true. She also testified that she independently scored the applicant’s job class based on the applicant’s evidence, and that her score was lower than the one done by the job evaluation committee.

62. The Tribunal heard evidence about the applicant’s Director title, and the fact that the medical library is referred to as a department. The applicant’s submissions highlighted that her ratings were too low because they were not in-line with other director positions, or that the library was devalued as not being a true “department”. The respondent argued that titles are not determinative of a score, rather that one must look at the context in which the job duties and responsibilities are performed. On this point was a fundamental dispute between the parties about the role of the library to the overarching function of a hospital. The applicant’s position was along the lines of “a department is a department” so they should be scored the same, where the respondent’s argument was that although it was a valued function within the hospital, it provides more of an ancillary function, and does not have the degree of responsibility, nor size, of other departments that are directly involved in patient care or in setting the mandate and direction of the organization.

63. Another point of contention with respect to the ratings was whether the applicant’s work in Ethiopia was a requirement of the job. The applicant said that it was. The respondent said that it supported her in that endeavour, but in no way was that a job requirement for the Director, Medical Library position. After considering the evidence, the Tribunal finds that the applicant’s overseas work was not a requirement of the job. While the respondent supported the applicant in her endeavours, the Tribunal heard no evidence that it required her to engage in those projects. On this point, merit and capability of an incumbent (which by all accounts the applicant was a very capable employee) is not considered when a job class is evaluated. The most common example of this is where a job requirement is a master’s degree, but an incumbent holds a PhD – the job is still evaluated as requiring a masters, notwithstanding that the incumbent possesses a higher level of qualification.

64. As set out above, it is well established that the Tribunal does not interfere with an employer’s ratings, unless it was demonstrated that any of the statutory criteria was ignored, or the evaluations were unreasonable to the point where intervention was required to fulfill the purpose of the Act.

65. To exemplify this point, I will admit that at the outset of the proceeding when I reviewed the pleadings and documents, my immediate reaction (prior to hearing evidence) was that the rating of 1 for sensory effort seemed low. However, as the case progressed and I heard Ms. Griffin’s evidence, it reinforced exactly why the Tribunal is hesitant to substitute a rating that the panel members may have awarded at first instance, as these evaluations are done in a much broader context, that considers the factors relatively within an organization, and are not done in isolation. The specific evidence that reinforced this point was when I asked Ms. Griffin what her job class’s score was for sensory effort, so I could get a sense of the relativity she was referring to during her evidence. Ms. Griffin answered “1. My job is a 1, and all human resource jobs are 1”. Ms. Griffin explained that positions that allow the employees to take breaks as needed and step away from their desk does not give rise to a sensory effort score above 1, without more, and this scoring is consistent across the organization. This is exactly why, as the Tribunal’s jurisprudence sets out, that evaluating a job class in isolation is a perilous exercise, as there are a range of reasonable outcomes, and job evaluations are not done in isolation. In this case, if I were to substitute the rating for sensory effort because it “seemed” low metric, it would have the effect of raising a subfactor for one job class to be inconsistent with every other job class that possess the same work characteristics.

66. The applicant relied on paragraph 30 of Ontario Nurses’ Association, supra, for the principle that “manual dexterity required for giving injections, typing, or graphic arts” was a frequently overlooked and undervalued aspect of women’s work in support of her argument that the rating is unreasonable and contrary to the principles of the Act. However, the Tribunal finds this decision distinguishable to the instant case. The primary reason is that dexterity related to typing is explicitly listed under the “skill” factor and is completely omitted under the “effort” factor (also set out in paragraph 30). This alone suggests that the Pay Equity Office and Tribunal turned their mind to where typing was undervalued in 1991 and it was under the skill factor, not the effort factor which is being challenged in this case. The second reason is that this decision was issued in 1991 and the context is extremely different. In 1991, the work environment and working conditions was considerably different than in 2020 when this application was filed. In 1991, personal computers were rare in workplaces, and laptops were almost unheard of. As such, secretarial employees who were recognized as systemically underpaid in the 1980s performed a disproportionate of the typing duties. As such, it makes complete sense that typing was listed as an undervalued skill in 1991. The Tribunal heard no evidence in this case about whether spending time in front of a computer at work is either: remains predominately “woman’s work”; or remains systemically undervalued.

67. As set out above, the Tribunal has held that there are two situations in which it will find that the evaluation is not compliant with the Act. The first is when any of the statutory criteria were not considered. In this case, it is undeniable that the statutory criteria were considered, and the dispute lies with the applicant’s disagreement with the ratings attributed to some of the statutory subfactors.

68. The second reason to interfere is where the evaluations were unreasonable to the point that it requires the Tribunal to intervene to fulfill the objectives of the Act. After considering the evidence, the parties’ submissions and the authorities relied upon, the Tribunal does not find that the evaluations were unreasonable to the degree that warrants intervention. This is especially the case given that Ms. Griffin explained in detail the process of how the job classes are evaluated, that the job classes are rated relatively to one another, and that the ratings are applied consistently across the organization, even when they do not perfectly mirror the wording of the gender-neutral comparison system metric. As such, after hearing and considering the evidence, the parties’ submissions, and the authorities relied upon, the Tribunal is persuaded that the evaluation of the applicant’s job class was not unreasonable.

Conclusions and Declarations

69. The Tribunal finds that the applicant was not terminated as a reprisal for raising pay equity concerns.

70. The Tribunal finds that the pay equity plan was posted in accordance with the Act and has been deemed approved since 1990. The Tribunal finds that pay equity has been maintained with respect to the applicant’s position in accordance with section 7 of the Act.

71. The Tribunal finds that the applicant was not provided with her comparators in a reasonable time after being asked for them. Accordingly, remedy for this violation is a declaration that the respondent violated section 1(3) of the Act prior to providing them in 2019.

“M. David Ross”

M. David Ross, Chair