Trumble v. The Corporation of the Township of Limerick, 2023 CanLII 72101

Jennifer Trumble, and Margo Reid, Applicants v The Corporation of the Township of Limerick, Respondent

BEFORE: Lindsay Lawrence, Vice-Chair, and Board Members Carla Zabek and Carol Phillips

APPEARANCES: Jennifer Trumble appearing on behalf of the applicants; Maureen Houston, Janice MacKillican, Victoria Tisdale, and Jane Mizanski appearing on behalf of the respondent

DECISION OF THE TRIBUNAL: July 20, 2023

This is an application filed pursuant to section 24(6) of the Pay Equity Act, R.S.O. 1990, c.P.7 as amended (“the Act”). In this application, the applicants assert that the respondent has not achieved and maintained pay equity, and take issue with several elements of the pay equity plan that was created by the respondent in 2019, and the process used to create the plan.
The applicants essentially submit that the respondent’s pay equity processes were entirely deficient and non-compliant with the Act, such that, pay equity in this workplace must be implemented anew. The respondent contends that it has complied with the Act in full and that this application should be dismissed in its entirety.
At the outset, the panel notes that Ms. Trumble ably represented herself and her former co-worker in presenting a difficult case. We have reached the conclusions below notwithstanding her able presentation, and acknowledge that she made her submissions based on her strongly held belief that the positions at issue were undervalued.
For the reasons that follow, this application is dismissed.

The Parties

The respondent, the Corporation of the Township of Limerick (the “Township”), is a lower-tier municipality, incorporated pursuant to the provisions of the Municipal Act, 2001 S.O. 2001, c.25, as amended.
The applicant, Jennifer Trumble, is the former Chief Administrative Officer/Clerk/Treasurer (“CCT”) for the Township. Her employment with the Township ended in or around 2020.
The applicant, Margo Reid, is the former Administrative Assistant for the Township. Her employment with the Township ended in or around 2019.

The Process

Hearing dates were held in this matter on: October 25, 2022, January 13, 19 and 25, 2023, and April 13 and 21, 2023.
In accordance with the Tribunal’s decision dated April 8, 2022, and in advance of the first hearing date, the respondent filed signed witness statements, with attached exhibits, for each of its witnesses. At hearing, these witnesses adopted their signed witness statements as their direct evidence and the applicants then cross-examined the witnesses on their evidence. The Board heard the evidence of Janice MacKillican and Jane Mizanski in this manner.
At the conclusion of the respondent’s evidence, the applicant, Jennifer Trumble, testified and was cross-examined. No other witnesses were called.
On agreement of the parties and with the consent of the Tribunal, Ms. Trumble made closing argument orally for the applicants and filed her written closing argument notes with the Board. The respondent did not make oral closing argument, but filed its closing argument in writing. The applicants replied in writing. The final submission was filed on May 19, 2023.
In arriving at this decision, the Tribunal has fully considered the written material, including the application, the response, the witness statements and other documents filed as exhibits in this proceeding, as well as the oral testimony of the witnesses, the oral and written closing argument of the applicants and the written closing argument of the respondent.

Facts/Evidence

In October 2018, a new municipal council was elected in the Township (the “Council”) and around that time it was identified that the records with respect to pay equity maintenance were incomplete.
Ms. Trumble and Councillor Janice MacKillican began the process of gathering employee data to ensure pay equity compliance. As part of that process, Ms. Trumble and Ms. MacKillican worked on a list of 17 factors for job scoring purposes and used the Pay Equity Commission’s online tool to produce a pay equity evaluation. This process resulted in a Job Evaluation which identified adjustments for the Deputy Clerk/Treasurer and Administrative Assistant positions. The CCT position was not entitled to an adjustment when evaluated against the Public Works and Infrastructure Manager (“PWIM”), sometimes referred to herein and in the supporting records as the Roads Supervisor and/or the Public Works Supervisor.
Ms. Trumble argued that the CCT position should be evaluated against both the PWIM and the Fire Chief positions, on the basis that, just as she occupied more than one position, both of these roles were occupied by the same person at the time. The Township disagreed, on the basis that the Fire Chief was a separate scope of work, with no requirement that it be held by the PWIM. Further, the Township argued that the Fire Chief is not an exclusive role within the Township, but is a shared position, with at least one other municipality using the services of the incumbent and contributing to his or her wages.
Ms. Trumble also identified concerns about the hours of work applied to identify adjustments. Council had taken the position that hours should be per the relevant written employee agreements and job descriptions, pursuant to which the PWIM was to regularly work 40 hours per week, and administrative staff were generally in the range of 32-35 hours per week (during the period in which the evaluation occurred). Ms. Trumble took the view that the hours should be standardized.
Given the concerns expressed, the Township contacted legal counsel for assistance in facilitating an independent evaluation by a third-party. Gallagher Benefit Services (Canada) Group Inc. (“Gallagher”) was ultimately retained. Jane Mizanski worked for Gallagher and performed the pay equity evaluation.
Gallagher employed both the Job-to-Job and Proportional Value methods of comparison, the former for the Administrative Assistant job class and the latter for the CCT job class using the “Gallagher McDowall Universal Job Evaluation Plan” (the “Gallagher Plan”), a gender-neutral comparison system to rate the jobs, because of the small number of employees working for the Township and the lack of suitable male comparators for all female job classes.
Ultimately, Gallagher concluded that no pay equity adjustments were owing for any female job classes between 2010 and 2016. For 2017, an adjustment was owing for the Deputy Clerk/Treasurer of $0.57 per hour, resulting from a determination that the wage rate applied on creation of the position was not pay equity compliant. For 2018, adjustments were owing for both the Deputy Clerk/Treasurer ($0.35 per hour) and Administrative Assistant ($2.86 per hour), with a pay gap having emerged in 2018 vis-à-vis the latter and the male comparator’s wage. With these recommended adjustments, Gallagher determined that the Township would achieve pay equity compliance.
Gallagher’s findings and draft pay equity plan were presented to Council in September 2019. Shortly thereafter, Council adopted these findings and the draft pay equity plan. Council made the adjustments and retroactive payments.
In late 2019, the applicants filed an Application for Review Services. The Review Officer’s decision was issued on June 23, 2021.
This application was filed on November 23, 2021.

Decision and Analysis

(1) General Comments

This panel believes that it is helpful to make a few general observations before giving a broad summary of each issue raised, the positions of the parties, and the Tribunal’s analysis and decision on these issues.
First, although there are two applicants to this application, only Ms. Trumble attended the hearing dates and only Ms. Trumble testified. While she addressed issues related to Ms. Reid’s former position, much of the evidence and argument focussed on Ms. Trumble’s former position, which is therefore reflected in this decision.
Second, Ms. Trumble spent a considerable amount of time in her cross-examinations, in giving her evidence and in her argument, on the initial process undertaken by Ms. Trumble and Ms. MacKillican in which they used the Pay Equity Commission’s online tool to produce a pay equity evaluation. While the initial process provides some background to the pay equity plan created by Gallagher, evidence about this process is of limited assistance and relevance to the Tribunal because that process was not ultimately used, and the Act and the Tribunal’s jurisprudence are clear that the employer is the entity that is statutorily obligated to create the pay equity plan, and it is that plan that is reviewed for compliance with the Act. The jurisprudence is also well established that pay equity is not an exact science and there are a range of reasonable outcomes over which the employer has discretion so long as those outcomes are compliant with the Act.
Ultimately, the question before this panel is whether the pay equity plan as adopted by Council is pay equity compliant and whether pay equity has been maintained. The fact that a different result was reached in an earlier process that was not adopted by Council is not overly relevant to whether the pay equity plan that was approved by Council complies with the Act. Accordingly, the Tribunal’s role is to evaluate whether the Gallagher process and the plan resulting from it complies with the Act.
Third, this is not a case in which assessments of credibility have played a significant role. All of the witnesses were forthright and testified to what they believe occurred. Both Ms. Trumble and Ms. MacKillican had different recollections of some events, and different understandings about various practices and the scope of duties in the Township, but those differences are not material to this decision. Ms. Mizanski, in particular, was a credible witness. Her testimony was thorough and free of any tug of self-interest, and she explained each step of the process used ably and in detail. We were left with the impression that Ms. Mizanski took her role seriously and took great care to ensure the process was both thorough and fair.
Fourth, the decision below addresses the most significant arguments advanced by Ms. Trumble. At times, Ms. Trumble focussed on the individual incumbents to various positions, and the minutiae of how they performed their work. We accept the respondent’s submission that our focus must be on the positions themselves (as opposed to the individual incumbents), and on the Gallagher Plan and its application. As argued by the respondent: gender neutral comparison systems “are not concerned with the minutiae of how a position performs its work, but are instead designed to produce gender-neutral scoring that does not unduly privilege one form of gendered skill or effort to the detriment of another. So long as the universal evaluation factors are consistently applied to both male and female job classes, the employer will have conducted an appropriate evaluation.”
Fifth, in terms of assessing this case, we accept that the size of the Township is relevant and informs some of the evidence. It was not disputed that the Township has approximately 1,120 ratepayers, in 560 households, with approximately 400 year-round residents. The Township typically has no more than 9 employees. It can be described as a small, rural municipality. As argued by the respondent, “[t]he modest size of the municipality restricts as a practical matter the kind of activities that might more consistently arise in a large municipality.” It was clear from the evidence before us that, while Ms. Trumble pointed to many duties as being significant, in evaluating job classes, Ms. Mizanski considered the relative infrequency with which some of these duties occurred as well as the relative scope of the duties (for example, the modest discretion afforded to the CCT in the limited purchasing by a small, rural municipality, which occurred within the financial oversight of the Council).

(2) Allegations of Bias and Unfairness

The applicants have made various allegations that the process was unfair and biased, including claims of unfairness and bias on the part of the Township, the law firm advising the Township and Gallagher. For example, the applicants argued that:

The Township did not but ought to have followed its procurement policy for purposes of engaging Gallagher.
The engagement letter from Gallagher contains reference to “an appropriate salary structure that is pay equity compliant and fiscally responsible”, which indicates that financial concerns were improperly considered from the outset.
Gallagher obtained information from Ms. MacKillican and from counsel to the Township, when the majority of the information should have been obtained through the Chief Administrative Officer.
Gallagher did not have regard to the overall organizational structure, including for example there was no reference to the Municipal Act or the organizational by-law.
Only the female job classes were required to submit written self-evaluations, whereas the male job classes were interviewed.

The respondent denies any unfairness or bias on its own part, or on the part of its legal counsel or Gallagher.

After considering the applicants’ allegations of bias or unfairness, even if true, the Tribunal does not find that those allegations could constitute a violation of the Act or otherwise change the assessment in this case. Again, the issue before the Tribunal is whether the pay equity plan complies with the Act, and the Act is not concerned with whether municipal procurement and/or conflict of interest policies have been followed, and/or whether retainer letters are properly worded and/or framed. If the applicant has concerns about how internal policies are followed, there are other avenues and forums where she can make those complaints.
Likewise, the Tribunal is not concerned with why one law firm or consultant was retained over another because what matters is whether or not the Township, with or without the assistance of legal counsel or consultant(s), took the necessary steps under the Act to serve the purpose of the Act as set out in section 4 which is to redress systemic gender discrimination in compensation for work performed by employees in female job classes.
With all respect to Ms. Trumble, she was one of the people who raised pay equity concerns and her position was one of the positions at issue. It makes sense that the Township did not choose to have the information flow through her in these circumstances, notwithstanding that one of her titles was Chief Administrative Officer. Indeed, given the small number of employees, Ms. Trumble’s job duties and her involvement in the initial pay equity process (which was contested and not adopted by Council), it was entirely appropriate for the Township to have retained a third-party consultant to evaluate the job classifications using a gender-neutral comparison system.
Further, we do not accept that there was any unfairness in Gallagher not having had regard to the Municipal Act, the organizational by-law or other such materials. From her testimony, it is clear that Ms. Mizanski understood the organizational structure, including but not limited to the relationship between the CCT roles as a composite position and the Council, and the job classes were rated in accordance with the Act.
Finally, we are not of the view that there was any unfairness or bias in the manner that information was collected. The applicants emphasized that only the female job classes were required to submit written self-evaluations, whereas the male job classes were interviewed. Ms. Trumble asked Ms. Mizanski in cross-examination whether she recalled saying “guys do not like to fill in job questionnaires because there is nothing in it for them”. Indeed, the applicants focussed on this remark in closing argument, arguing that it should be viewed as discrimination or “at least preferential treatment of male job classes.” Ms. Mizanski, however, answered this line of questioning in a forthright and reasonable manner. She noted that she did not remember the exact comment, but that it was quite possibly something she said. She noted that in her experience, as a reality of doing pay equity analysis, some male incumbents see little personal upside and decline to participate in the process. She noted that, in this case, the female incumbents had already completed a questionnaire using the on-line tool but the male incumbents had not. A decision was made to conduct some interviews with these incumbents as it would be faster and would attain greater participation. She explained that she followed the questionnaire and recorded the answers given to her verbally, such that the same questions were asked and the questionnaire was completed, albeit verbally. Given Ms. Mizanski’s testimony, the Tribunal finds that the job information was collected in a way that is accurate and consistent across classifications, we are not of the view that there was anything unfair or improper about the way information was collected in this case.

(3) The Gallagher Plan

Broadly speaking, the applicants object to the gender-neutral comparison system used in this case on the basis that it was not a customized plan and therefore was not appropriate for use at the Township. As evidence for this proposition, the applicants argue that maximum points on the plan could not be obtained within the Township, and that the Township’s positions cumulatively could only obtain a small portion of the points.
Ms. Mizanski testified about the Gallagher Plan and about how the plan was applied. As noted above, her testimony was clear, forthright and detailed. We accept fully Ms. Mizanski’s testimony that the plan has been applied effectively to a variety of organizations, private and public and of many different sizes, and agree that there was nothing specific to the Township which required the creation of a customized plan or made the use of the Gallagher Plan inappropriate. We further agree with Ms. Mizanski that it is irrelevant that no position within the Township could garner maximum points under this plan or that the points total overall was a relatively small portion of the plan’s available points. The positions were evaluated relative to one another based on the statutory criteria such that the relative outcome, and not the total points, was of significance.
In the end, it appears that this application stems from an incomplete understanding on the applicants’ part about the Gallagher plan, and in particular how banding worked as part of the application of that plan. This is not surprising given that a copy of the plan itself was not provided by the respondent to the applicants until ordered to be produced by the Tribunal, and frankly, some of this misunderstanding may have been avoided if the plan was provided promptly, in advance of the first pre-hearing conference, without the need for a Tribunal order. In the interim, these misunderstandings appear to have festered and become even more deeply held beliefs by the applicants. By the time Ms. MacKillican was on the witness stand, explaining the plan and its application, it appeared to the Tribunal that it may have been difficult for Ms. Trumble to maintain an open mind that discretion was exercised within a range of reasonable outcomes, and it is obvious to the Tribunal that Ms. Trumble verily believes that the Township had a nefarious motive for changing the process and retaining Gallagher.
As the Tribunal recently summarized in Sharon Nolan-Conway v City of Toronto, 2023 CanLII 50685 (ON PEHT) at paragraphs 25 and 26:

It is well established in the Tribunal’s jurisprudence that the evaluation of a job class is an exercise of discretion that could yield a range of reasonable outcomes. The standard has been described by the Tribunal repeatedly in the oft-cited decision of Ottawa Board of Education, 1996 CanLII 7947 (ON PEHT):

It is our view that the standard applicable to determining whether the contravention has been established is necessarily different, depending upon whether the provision in question sets an exact minimum standard or implies a range. Thus, where the Act is precise, compliance is clearly necessary. Where the Act grants an element of choice to those designing the plan, some deference to their decision is appropriate. When the provision of the Act alleged to be contravened sets an exact requirement, we will inquire whether the impugned aspect of the plan is correct. When the provision is not capable of exact application, but implies a range or an exercise of discretion, we will inquire whether the impugned aspect of the plan is reasonable. The decision about whether a plan complies with the minimum standards of Part I is thus as objective an exercise as is possible.

Accordingly, the Tribunal has held that some deference must be provided to the parties which are statutorily obligated to create a pay equity plan (whether that be the employer and union where the employees are represented by a bargaining agent, or the employer where no bargaining agent exists) where elements of choice are afforded to them by the Act.

Moreover, as noted in AG Simpson Automotive Inc (Re), 2011 CanLII 36309 (ON PEHT), relied upon by the respondent:

There are no fixed rules concerning methods of job class comparison, including banding methodology, in pay equity plans. In terms of how job classes of comparable value are to be identified, the Act itself is silent. Various banding methodologies may satisfy the requirements of the Act: fixed point bands, variable point bands, floating bands based on percentages, for example. In the context of a non-union pay equity plan, the banding methodology to be adopted is the decision of the employer. The chosen methodology need not be the one that ensures adjustments for the greatest number of female job classes. Employers are entitled to exercise their discretion in that regard, so long as they do so reasonably and consistently with the purposes and intent of the Act.

The Gallagher Plan considers the statutory criteria, and the Tribunal is not of the view that the evaluations of the respective job classes were unreasonable in a way or to a degree where the Tribunal would intervene.
In the sections below, we set out some of the specific concerns raised by the applicants but we do not review each of the applicants’ arguments about the various factors under the Gallagher plan and how specific positions were evaluated. As a brief note, however, an overarching theme in the applicants’ argument is that the language used in some of the female job class job descriptions and job questionnaires is very similar or identical to the language used in a particular factor under the Gallagher Plan. The applicants therefore submitted that these similarities were “purposefully ignored.” To this end, Ms. Mizanski explained, and we accept, that the exercise undertaken was not simply one of matching words in the plan with words used in questionnaires or job descriptions, but rather required looking at the activity as a whole, including for example, the frequency with which a task is being performed and the relative weight of the responsibility within the organization.
It is also instructive at this point to note that, with respect to the CCT objections on the various ratings, the CCT was the lone occupant of the top band and was evaluated at the lower end of that band. The result is that there would need to be significant changes on many factors to achieve a rating such as to cause upward mobility. An adjustment of scoring on one or even few factors would not be sufficient to have the CCT job class elevated into a higher wage band.

(4) The Chief Building Officer, the Fire Chief and CEMC Duties

The applicants made various arguments about positions and/or duties which were alleged to have been improperly excluded or valued in the evaluation process. These arguments related primarily, although not exclusively to the positions of Chief Building Officer (“CBO”) and the PWIM, the Fire Chief and to the role of Community Emergency Management Coordinator (“CEMC”). The arguments with respect to these positions were sometimes difficult to follow and are hard to separate, but we have tried to address them in turn below.
The applicants argued that it was improper to exclude positions such as the CBO from the pay equity analysis. Ms. Mizanski testified, and we accept, that it was not necessary to consider every male comparator as there were sufficient male comparators in the banding structure established so as to create the basis for comparison. Moreover, Ms. Mizanski was advised that the CBO was an independent contractor, not an employee of the Township, and that she was satisfied that this was accurate. The Act only applies to employees of the Township, and does not mandate that non-employee contractors are included in, evaluated and compared with employees as part of the pay equity plan.
Having regard to the common law tests applied by the Tribunal to determine the employee status of individuals: see, for example, Wellington (County) v. Butler, 1999 CanLII 14830 (ON PEHT), the Tribunal finds that the CBO was not an employee job class. The applicants did not provide evidence refuting the understanding that the CBO acted on a fee for service basis with services to a number of municipalities, and that while he did hold office hours from the municipal building in order to provide service, he did not have a dedicated municipal contact address, and the Township did not dictate the way he carried out his work or his day-to-day activities.
One of the main arguments advanced by the applicants is that the role of Fire Chief was improperly excluded from the evaluation. From Ms. Trumble’s perspective, the PWIM also served as the Fire Chief, and it was unfair to treat these positions as separate when her position as CCT was a composite of the Clerk/CAO/Treasurer roles, which also included the role of CEMC. Ms. Trumble stressed that both she and the male incumbent to the PWIM and Fire Chief role performed composite positions, and that both the Fire Chief and the CEMC are statutory positions, performing duties during regular working hours.
We accept the evidence of Ms. MacKillican, supported by the documentation, that the PWIM and Fire Chief roles are separate and distinct functions that need not be performed by the same individual. The PWIM job description does not refer to fire service duties. Moreover, the Fire Chief performs services for one other municipality and is compensated through invoicing. By way of contrast, the CCT duties, which include the CEMC duties, are encompassed in a single position. While it is true that duties of the Fire Chief may arise and need to be performed during the regular working day of the PWIM, there is nothing to suggest anything other than that the PWIM was expected to and did execute all duties required under his PWIM employment contract. The applicants did not adduce evidence which would support treating the PWIM and Fire Chief roles as a hybrid position requiring calculation of a joint job rate. We conclude, therefore, that it was reasonable and appropriate not to include Fire Chief’s compensation in the job rate calculation of the PWIM.
We also accept the evidence of Ms. Mizanski, that the CEMC’s duties were taken into consideration and reasonably valued as part of the CCT job class. The CEMC is not a distinct office or role within the Township, but rather a set of duties which have been assigned to the CCT. Ultimately, the assignment of the CEMC duties made no material difference to the evaluation of the CCT role because the CEMC responsibilities were rated as “less difficult” in each applicable factor than those associated with the remainder of the responsibilities associated with the CCT position.

(5) Compensation and Job Rates

The applicants argued that the process failed to consider all relevant compensation, including benefits afforded to the male job classes by virtue of collective agreement sick pay and standby pay. The applicants also argued that there was a failure to consider compensation such as extra sick days and vacation granted to the PWIM, the use of a municipal pickup truck for public works employees and salvage rights from the landfill with respect to the Landfill/ Disposal Custodian.
The Tribunal reviewed the evidence, and is not satisfied that the differences in working conditions or other benefits affected relative evaluations or the placement of the respective job classes. While different forms of compensation can be considered by the Tribunal during a pay equity exercises, the Tribunal is not satisfied that the relative compensation was not appropriately considered in this case.
The applicants also argued that the job rate used for the PWIM was improperly calculated on a 40-hour work week, while the female job classes were based on a 32 to 35-hour work week, depending on the position. We accept the evidence of Ms. MacKillican that Council had established the job rates using the employee agreements and job descriptions, and that the PWIM was considered a 40-hour work week, while the CCT was considered a 35-hour work week. This is not to say that Ms. Trumble herself did not work more than 35 hours per week on some or many weeks; it is simply that we must have regard to the position, not the incumbent, and to the hours of work assigned to those positions.

Conclusion

For the reasons set out above, the Tribunal finds that the applicants have not established any breach of the Act. The application is dismissed.

Dated at Toronto, Ontario this 20th day of July, 2023.

“Lindsay Lawrence” Vice-Chair

“Carla Zabek” Member

“Carol Phillips” Member