Ontario Secondary School Teachers' Federation, District 17 v Simcoe Muskoka Catholic District School Board, 2024 CanLII 39663

PAY EQUITY HEARINGS TRIBUNAL

PEHT Case No: 0165-21-PE

Ontario Secondary School Teachers' Federation, District 17, Applicant v Simcoe Muskoka Catholic District School Board, Respondent

BEFORE: M. David Ross, Vice-Chair

APPEARANCES: Susan Ursel, Nicole Paroyan and Fatima De Jesus appearing on behalf of the applicant; Craig Lawrence and Larysa Workewych appearing on behalf of the respondent

DECISION OF THE TRIBUNAL: April 30, 2024

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

[2]. This matter returns to the Tribunal following the decision (differently constituted) of Simcoe Muskoka Catholic District School Board, 2018 CanLII 123879 (ON PEHT) (“the 2018 Decision”). In that decision, the Tribunal found that the Simcoe Muskoka Catholic District School Board (“the School Board”) had not negotiated the amended pay equity plan in good faith. The Tribunal provided the parties until January 31, 2019 to reach an agreement, but directed that if they were unable to reach an agreement by that date, then a Review Officer was directed to prepare the pay equity plans for the parties pursuant to section 25(1)(a) of the Act. At paragraphs 137 to 140 of the 2018 Decision, the Tribunal held:

137. The Tribunal has broad remedial powers, following a hearing, under subsection 25(2) of the Act, including the authority to confirm, vary or revoke orders of Review Officers, and to order a party to take such action or refrain from taking such action as in the Tribunal’s opinion is required in the circumstances.

138. For the reasons stated earlier in this decision, the Tribunal declares that the Board violated its duty to bargain in good faith and to endeavour to reach an agreement to amend the pay equity plans with OSSTF. The Tribunal is prepared to provide further remedial relief (described below) in order to facilitate the resumption of negotiations between the parties and to ameliorate the Board’s failure to bargain in good faith. In my view, however, it is not appropriate for the Tribunal to direct the result of those negotiations, as OSSTF effectively requests in the orders it seeks. Rather the parties should finish what they started, pursuant to the process to which they agreed they would be bound.

139. To that end, the Tribunal orders the parties forthwith to resume their negotiations pursuant to the Terms of Reference applicable to each unit, based upon the final ratings determined by the respective JJECs. The Board is not entitled to raise any process concerns relating to the conduct of the JJECs in the course of these resumed negotiations. Moreover, in the endeavour to reach agreement on the appropriate male comparators for the amended pay equity plans, the Board is not entitled, absent a rationale that does not run afoul of its obligations under the Act, to bargain to impasse maintaining the same percentage thresholds in respect of the new male comparators that were negotiated for the former male comparators in the 2000 pay equity plans.

140. The parties shall have until January 31, 2019 (or such other period as they may mutually agree) to reach agreement on amended pay equity plans for the two bargaining units. If the parties are unable to reach agreement within the prescribed period, the Tribunal, pursuant to subsection 25(1)(a) of the Act, orders that a Review Officer prepare amended pay equity plans for the Board’s establishment. Since I have found that the Board bears responsibility for having de-railed the negotiations in 2010, I order the Board to pay all of the costs of preparing the amended plans, including any costs as a result of the Review Officer retaining the services of such experts as he or she considers necessary to assist in the preparation of the amended plans.

[3]. The parties did not reach an agreement and therefore, a Review Officer ordered pay equity plans for the parties’ Office and Clerical (“O/C”) and Educational Assistant (“EA”) bargaining units. The Order was made on November 3, 2020 (“the Order”), retroactive until December 18, 2018.

[4]. In this application, the Ontario Secondary School Teachers' Federation, District 17 (“the OSSTF”) asserts that several aspects of the Order are unreasonable. The OSSTF’s takes issue with the following elements of the Order:

a) the Student Office Assistant – Student Service job class in the O/C bargaining unit should have been compared to the Electrician male job class;

b) the School Office Administrator job class in the O/C bargaining unit should have been compared to the EMS Coordinator male job class;

c) the retroactivity date should be to 2001 when the parties agreed that there were no longer appropriate male comparators, not December 18, 2018; and

d) the Review Officer did not have jurisdiction to find that the Terms of Reference have been “spent”.

[5]. The Tribunal was first asked to decide whether the Review Officer was bound to the parties’ agreements contained in the parties’ unsigned Terms of Reference (“TOR”). In Simcoe Muskoka Catholic District School Board, 2023 CanLII 54358 (ON PEHT), the Tribunal held that the Review Officer was not bound to the parties’ agreements contained in the TOR. At paragraphs 32 to 36, the Tribunal held:

32. Obviously, the pay equity plan (or amendment of a plan) prepared by the Review Officer must be compliant with the Act. That is the only statutory requirement imposed on Review Officers when the Tribunal makes an order under section 25(2)(a) of the Act. There is no other requirement in the Act that fetters a Review Officer’s discretion about how such a plan is prepared. In the instant case, there are no other restrictions imposed on the Review Officer in the December 17, 2018 does not impose any further restrictions on the Review Officer.

33. The Tribunal does not agree that it was a requirement for a Review Officer to “step into the shoes” of the parties and pick up where they left off in their negotiations. A Review Officer is not bound to agreements reached between the parties, or the process they agreed to. The parties had the opportunity to conclude their own negotiations using their processes but failed to complete it. For whatever reason, that process did not work. It may be that a Review Officer relies heavily on the progress made between the parties and seeks input from the parties about how the plan should be completed. However, it is equally within a Review Officer’s discretion to prepare a pay equity plan from scratch so long as it complies with the Act.

34. The Tribunal also finds that the Review Officer did not exceed her jurisdiction when she considered the issues of the retroactivity date or newly created or changed job. Conversely, the Tribunal finds that she was required to do so to comply with the purpose of the Act and there was no error when the Review Officer decided to make the plan as current as possible. Two decades had passed since the parties agreed that they needed to amend their plan. Again, the Tribunal understands that the applicant disputes the Review Officer’s conclusions on these issues, but that does not affect the Review Officer’s discretion to consider those issues.

35. The Review Officer’s plan is subject to the statutory right of either party to object to the plan prepared by the Review Officer pursuant to subsection 25(4)(d) of the Act. This is the statutory safeguard available to parties so they can ensure that the Review Officer’s plan is compliant with the Act. Subsection 25(4)(d) of the Act states:

when the review officer posts the plan in the workplace as subsection 14 (4) or 15 (6) provides, the employer, the bargaining agent (if the plan relates to a bargaining unit), or any employee or group of employees to whom the plan applies (if the plan does not relate to a bargaining unit) may file an objection with the Hearings Tribunal;

36. Again, it is obvious to the Tribunal that the applicant does not agree with the Review Officer’s conclusions on several aspects of the pay equity plan she prepared. However, much of the applicant’s submissions during the June 6, 2023 hearing date focused more on why the applicant believes that the Review Officer’s plan does not comply with the Act, which will be addressed during the next step of this hearing. The applicant has not lost the right or opportunity to object to that plan and present evidence to the Tribunal about why the Review Officer’s plan should be amended or set aside to ensure that the plan complies with the Act.

[6]. The parties then proceeded to present their evidence on November 28, 2023, January 17 and 19, 2024. The parties’ made their closing arguments on March 1 and 4, 2024.

Evidence

[7]. The facts relevant to this application go back to the turn of the century. The history of the disputes between these parties is set out in detail from paragraphs 4 to 87 in the 2018 Decision. Both parties relied on the 2018 decision for the evidence that has already been determined by the Tribunal. As such, it is unnecessary to reproduce most of the parties’ history in this decision, especially as it pertains to the breakdown in the parties’ negotiations because that issue has been determined and is not overly relevant to the issues the Tribunal must decide about whether the Order, or part of the Order, is unreasonable.

[8]. Furthermore, the history and the evidence are largely not in dispute between the parties; rather it is the interpretation, characterisation, and application of the evidence to the issues in dispute where the parties disagree.

[9]. At the outset of this decision, it is important to note that the pay equity plans were ordered by the Review Officer pursuant to section 25(1)(a) of the Act and the Tribunal is reviewing the decisions made by the Review Officer in this case. This is different than most applications that come before the Tribunal because in the normal course, since pay equity matters are heard by the Tribunal on a de novo basis, the Tribunal does not review the reasonableness of an Order or Notice of Decision.

[10]. The Review Officer ordered separate pay equity plans for the O/C and EA bargaining units. Both bargaining units used male comparators from the Plant Maintenance (“PM”) bargaining unit. The OSSTF is also the bargaining agent for the PM bargaining unit.

[11]. During the hearing, the parties confirmed to the Tribunal that the parties selected a subset of the male job classes in the PM bargaining unit to evaluate. There is nothing contrary to the Act in choosing to evaluate a subset of male comparators, it is a choice that was made between the parties, but this decision provides a good example of the kinds of different choices parties make during the creation of a pay equity plan or amended plan. For example, the parties could have chosen to evaluate all the male job classes, or a different subset of male job classes from the PM bargaining unit and it likely would also have been reasonable to have done so.

[12]. The new male job classes originally had “job context sheets” that the parties acknowledged were “not particularly helpful information” for the purpose of pay equity. The parties completed gathering the relevant job information for the male job classes for pay equity purposes in 2007.

[13]. The evaluations of the job classes were completed on or around August 31, 2010 and resulted in a “Rank Order Report” for each of the bargaining units. The Review Officer used the parties’ joint evaluations/Rank Order Report for each of the bargaining units as directed in the 2018 Decision.

[14]. The evaluations were completed using a gender-neutral comparison system (“GNCS”) as required by section 12 of the Act. The O/C bargaining unit’s evaluation system, weights and values was approved on or around February 9, 2007. The EA bargaining unit’s system, weights and values was approved on or around February 15, 2007. Both GNCSs appear to be based on the OSSTF’s Pay Equity Job Evaluation System.

[15]. Both GNCSs evaluated 13 subfactors to result in an overall score. The weighting and value systems appear to be the same for both bargaining units. The evaluation system rated each job class out of a potential of 1000 points if the job class had the highest rating in each of the subfactors. The OSSTF’s Joint Job Evaluation Committee (“JJEC”) members differed between EA and O/C bargaining units. The School Board used the same JJEC committee members for both bargaining units. The OSSTF had a consistent member of the Joint Steering Committee (“JSC”), Ms. Speare.

[16]. Somewhat perplexingly, the JJEC’s evaluated the same male job classes that were used for the male comparators in both the EA and O/C bargaining units differently. Examples of these differences in evaluations are:

• the Maintenance Lead Hand job class was evaluated at 563 points in the EA plan, but 621 points in the O/C plan (a 58 point or 5.8% difference[1]);

• the Electrician job class was evaluated at 613.5 points in the EA plan, but 638.5 points in the O/C plan (a 25 point or 2.5% difference);

• the EMS Coordinator job class was evaluated at 639 points in the EA plan, but 695.5 points in the O/C plan (a 56.5 point or 5.65% difference);

• the Refrigeration Mechanic job class was evaluated at 664.5 points in the EA plan and 641.5 points in the O/C plan (a 23 point or 2.3% difference); and

• the HVAC Technician job class was evaluated at 659.5 points in the EA plan, but 673.5 points in the O/C plan (a 14 point or 1.4% difference).

[17]. It appears that every job class that was evaluated by both JJECs resulted in different scores between the bargaining units. No explanation was provided to explain these differences. On review of the GNCSs, it does not appear that the reason for the scoring discrepancies was because of subfactor weighting or value differences within the GNCSs. Rather, it appears that these differences are found because of the JJECs giving different scores in various subfactors for the same job class. For example, the 14-point difference in the HVAC Technician scoring appears to be because it was rated a 2.5 for the subfactor of Responsibility for Others in the EA plan, and 3 in the O/C plan. The Electrician job class contained more differences in the evaluations between the two bargaining units. The Electrician job class had different ratings in the Applied Reasoning and Analytical Analysis Skills, Physical Environment, Work Pressure, Health and Safety, and Responsibility for Others subfactors. Some of these subfactors were rated higher by the O/C JJEC and others higher by the EA JJEC. The difference ended up being 25 points.

[18]. The fact that different people (the respective members of the OSSTF’s JJEC’s) can evaluate the exact same subfactors differently using the same guidelines set out in the GNCSs, and the fact that the same people (the School Board’s JJEC) also did so, is a perfect example for why the Tribunal repeatedly states that job evaluation is not an “exact science”. This is another reason why deference is provided by the Tribunal to the decisions made by the creators of pay equity plans. As seen in this case, reasonable people can evaluate the exact same job classes using the same GNCS and come up with different results. In this case, those scoring differences ranged from 14 points to 58 points.

[19]. The EA pay equity plan ordered by the Review Officer consists of four 30-point bands (“A” to “D”) starting at 560 points. The placement, the point value, and the gender dominance for each job class is as follows:

[20]. The Review Officer ordered pay equity adjustments for the EA job class to bring it in line with the Refrigeration Mechanic’s (male comparator) job rate. The Refrigeration Mechanic job class was created in or around 2004. The total difference between the job rate of these job classes was $2.21 as of September 1, 2019. The result of this order was the closure of the job rate gap between these job classes.

[21]. The DECE female job class in the E/A bargaining unit was created after the parties’ pay equity process commenced. The parties disagree about whether the DECE job class should be included in this pay equity plan.

[22]. The O/C pay equity plan ordered by the Review Officer consists of three 30-point bands (“A” to “C”) ranging from 610 to 699 points. The placement, the point value, and the gender dominance for each job class is as follows:

[23]. The Review Officer ordered pay equity adjustments for the School Office Administrator job class to bring it in line with the HVAC Technician job class. The difference in job rate was $0.05 as of September 1, 2019. The School Office Assistant job classes received a $2.77 pay equity adjustment as of September 1, 2019. The result of the order was the closure of the gap in the job rate between the female and male job classes.

[24]. The banding structure of the pay equity plans ordered by the Review Officer were consistent with the pay equity plans that the School Board sought to have implemented.

[25]. The Review Officer concluded that December 18, 2018, was a reasonable retroactive date for the above pay equity adjustments to be made, and no retroactive payments were owing prior to December 18, 2018.

[26]. The OSSTF provided evidence that wage differentials between the job classes that received pay equity adjustments existed prior to December 18, 2018. The OSSTF referenced the wage schedules in the parties’ collective agreements back to 2001 during this period to highlight the differences. However, some of the data, particularly the data from 2001 to 2004 was extrapolated using the old Maintenance II and III job rates, rather than the trade specific job rates.

[27]. In preparation for closing arguments, the parties discovered that there was a difference in the across-the-board increases provided to the three bargaining units during the 2001 to 2004 round of collective bargaining. This is different than what was originally believed and different than the evidence that was led before the Tribunal in the 2018 Decision. For pay equity purposes, the Tribunal understands the difference was that the PM bargaining unit received 0.25% more in increases than the O/C bargaining unit during this period. From 2004 onwards, the bargaining units received the same across the board increases.

[28]. No evidence was led by either party about the differences in the job duties, qualifications, working conditions, skill, or effort between the former Maintenance II and III job classes and the current trade specific job classes. As set out above, the job information that was used for the purposes of evaluating the male job classes was compiled in or around 2007.

[29]. No evidence has been led, in this application or in the 2018 Decision, by either party to explain the rationale for the 90% or 92% thresholds[2] that the 2000 deemed approved pay equity plans used to complete pay equity.

[30]. The OSSTF called Allison Wallace to explain why the applicant believes the Review Officer’s pay equity plan does not comply with the Act. Ms. Wallace was not present during the negotiations that resulted in the 2000 deemed approved plan or any of the process prior to the 2011 application to Review Services. She was called by the OSSTF for her experience as an experienced pay equity negotiator and to provide evidence about the post-2018 Decision discussions between the parties.

[31]. She testified that she believes that the School Board’s positions on comparators and retroactivity are motivated by financial concerns as opposed to pay equity concerns and relied on email correspondence and statements that she heard during meetings with the School Board.

[32]. Ms. Wallace was also clear that she believes that the OSSTF’s comparators are “more appropriate” than the pay bands that the Review Officer ordered because the job points are closer. Ms. Wallace suggested that banding was inappropriate in this case, but under cross examination acknowledged that banding is a common practice for pay equity, and acknowledged that the OSSTF had prepared its own banding proposal for the O/C bargaining unit (on or around January 30, 2019) on a without prejudice basis. That banding structure also contained 30-point bands, but differed in the start and end points of the bands.

[33]. The School Board called Fred Hibbs and Mary Turan.

[34]. Mr. Hibbs was the Superintendent, Human Resources of the School Board. He was involved in this matter from shortly after the 2018 Decision was released until July 2022. Mr. Hibbs testified to the fact that the TOR continued to be a source of contention between the parties, and that he did not understand the TOR to continue to apply because they were unsigned and inadequate in its clarity. He also spoke about the reality of the School Board’s financial reserve and denied the proposition that the School Board was trying to avoid pay equity for financial reasons.

[35]. Ms. Turan is a pay equity consultant. She was engaged for the purpose of this application and was not involved with the parties’ processes leading up to this application. The School Board called her to speak about various elements of the Review Officer’s plan, specifically the retroactivity and banding. Ms. Turan testified that using “ghost comparators” was a practice employers can use to show pay equity was maintained after a female job class no longer had a male comparator. Ms. Turan also shared her view that the banding structure ordered by the Review Officer was appropriate as banding is a common practice for job-to-job comparisons. However, Ms. Turan admitted that she was not aware that the 2000 deemed approved plan only provided the female job classes with a percentage of the job rate of their male “ghost” comparator and had not considered the findings in the 2018 Decision to the issues before this panel.

Summary of the Parties’ Submissions

[36]. The OSSTF submitted that the Review Officer’s Order was unreasonable and ought to be set aside. It submitted that it is unreasonable in three primary aspects:

1. The Review Officer’s Order was unreasonable when she imposed a banding structure when direct job-to-job comparisons were available and this resulted in inappropriate male comparators being selected for some female job classes;

2. The Review Officer’s Order was unreasonable when it arbitrarily cut off retroactivity to December 18, 2018; and

3. The Review Officer exceeded her jurisdiction by declaring that the TOR was spent.

[37]. The OSSTF was clear in its position that banding was not reasonable in this case. It asserted that there were more comparable male job classes that should have been the male comparators because they scored closer to the female job classes. Specifically, the School Office Assistant – Student Services job class should have been compared to the Electrician job class because there was only a one-point differential, and not the Maintenance Lead Hand which had a 16.5-point difference. The OSSTF also submitted that the more appropriate comparator to the School Office Administrator is EMS male job class because there is only a 3.5-point difference as opposed to the HVAC job class which had a 25.5-point differential.

[38]. The OSSTF submitted that banding models should not be used for the purpose of constraining pay equity adjustments, and that is what has occurred in this case. It submitted that with so few job classes, banding was unnecessary, and the only effect banding had was to ensure a lower rated, lower paid male job class fell into the band when there was an obvious job-to-job comparator, which is not consistent with the purposes of the Act.

[39]. The OSSTF submitted that there is no basis to limit retroactivity to December 18, 2018, and that order was inconsistent with the findings contained in the 2018 Decision. The OSSTF submitted that the wage gap emerged in 2001 and that the parties agreed to use 2001 as a retroactivity date in the TOR.

[40]. The OSSTF submitted that the Review Officer had no reason or authority to declare the TOR “spent” as that was outside of creating a new plan pursuant to section 25(1)(a) of the Act as ordered by the Tribunal.

[41]. The OSSTF relied on the following authorities in support of its positions: Simcoe Muskoka Catholic District School Board, supra; Sandra Kendall v Sinai Health System, 2023 CanLII 17263 (ON PEHT); Sharon Nolan-Conway v City of Toronto, 2021 CanLII 67627 (ON PEHT); Brampton Public Library Board (No. 2) (1994), 5 P.E.R. 51; “The Q & A Guide to Ontario’s Pay Equity Act, 7.7. Deciding on a mechanism or tool to determine the value of job classes”, Ontario Pay Equity Office; and Pay Equity Office, Government of Ontario, Banding Points for Pay Equity

Purposes (gov.on.ca).

[42]. The School Board submitted that the OSSTF’s position is that it wants a singular outcome to the pay equity process, and it wants to choose its preferred male comparators, but that is neither appropriate nor what is statutorily required. The School Board reiterated that the OSSTF constantly used phrases like “most comparable”, “more comparable”, and “closest comparable” in their arguments which suggest that the male comparators in the pay equity plans were “comparable” just not the OSSTF’s preferred comparisons. It submitted that banding is a well-established, recognized practice for determining comparability in a job-to-job comparison method and there is nothing about the banding structure ordered by the Review Officer that is unreasonable. The School Board also submitted that from a go forward basis the bands are valuable because when new job classes are created, they are evaluated and slotted directly into a band and the male comparator is already chosen. The School Board relied on the fact that a new female job class, the DECE job class, has been created since this process started, so this demonstrates that the value of pay bands for this purpose are not hypothetical.

[43]. The School Board submitted that the retroactivity date of December 18, 2018 was reasonable because the 2000 pay equity plan was deemed approved, and that plan continues as deemed approved until the plans are amended. The School Board submitted that during this period, the “ghost comparators” of the old Maintenance II and III job classes continue to apply and the 2018 Decision held that there were no apparent maintenance issues since the respective bargaining units received the same across-the-board increases.

[44]. The School Board submitted that the Review Officer was not unreasonable when she found that the TOR were spent. The School Board reiterated that the TOR were unsigned, remained unsigned, and at best, contained the clause explaining that “nothing is agreed until the plan is signed off”, which it never was.

Decision and Analysis

[45]. This case exemplifies how significant delay in the parties’ pay equity processes harms the purpose of the Act. The purpose of the Act is set out in section 4:

(1) The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes

(2) Systemic gender discrimination in compensation shall be identified by undertaking comparisons between each female job class in an establishment and the male job classes in the establishment in terms of compensation and in terms of the value of the work performed.

[46]. 24 years have passed since the parties agreed that they needed new male comparators for their pay equity plans. However, it took the parties 9 years to evaluate only 11 job classes. To be blunt, the Tribunal does not understand how it could take two sophisticated parties, who had just completed and posted pay equity plans, so long to evaluate that number of job classes if the parties were serious about completing amended pay equity plans.

[47]. It then took 8.5 years to litigate the issue about whether the School Board had negotiated in good faith in 2010. During this 8.5-year period where the parties litigated over process, nothing happened with regards to resolving the pay equity issues or pay equity plans. Then, after the parties were unable to finalize the pay equity plans themselves following the 2018 decision, this process before Review Services and then seeking review of that Order to this Tribunal has taken over 4 more years.

[48]. This delay has detrimentally affected the quality of the evidence in the two proceedings before the Tribunal, in this case, and before the panel in the 2018 Decision. Specifically, there is an absence of evidence about critical events and information pertinent to the parties’ disputes. The delay has apparently made it impossible for the parties to call the proper witnesses who could provide explanations for why certain relevant decisions were made early in the process, to explain discrepancies in the process, and documents that may have existed, no longer exist, or can no longer be found. The absence of this evidence required the Tribunal to delve into documentary evidence, including the minutia of the pay equity plans, the GNCS’s used, and the job evaluations to assist it with the context about these pay equity plans.

[49]. The Tribunal has considered all the documentary evidence, the witness’ testimonies, and the parties’ submissions in this case in arriving at its conclusions set out below.

The Terms of Reference

[50]. The first issue that the Tribunal will address is the dispute between the parties about the ongoing effect of the TOR. The OSSTF submits that the Review Officer exceeded her jurisdiction when she stated that the TOR were “spent”. The School Board submits that the TOR were never signed and contain a clause that “nothing is agreed to until the entire Plan has been signed off by the Parties”.

[51]. By decision dated June 9, 2023 (cited above), the Tribunal found that the Review Officer was not bound to the parties’ TOR in how she completed the pay equity plan.

[52]. The TOR relied upon by the OSSTF are unsigned, and no one who negotiated the TOR presented evidence before this panel in this case. A Review Officer has completed the pay equity plans pursuant to section 25(1)(a) of the Act and pay equity plans have been ordered. This decision addresses the parties’ remaining disputes about the Order and the pay equity plans. Therefore, the purpose of the TOR has been completed.

[53]. The only aspect of the TOR that could have a go forward application is the term at section 13.1 “The Parties shall establish a procedure for maintenance of the Pay Equity Plan in accordance with the Pay Equity Act”. However, that term does not say anything about what that process entails, a timeline for completion, and it does not even reference that the OSSTF has a right to negotiate said maintenance procedure. The Tribunal heard no evidence about what the phrase “the parties shall establish” means as the operative word “negotiate” is omitted from the plain language of that clause. The Court has affirmed that the Act does not confer a right to trade unions to negotiate pay equity maintenance with the employer, and therefore, the phrase “in accordance with the Pay Equity Act”, cannot be read to confer a right of negotiation for pay equity maintenance or reference a statutory right, rather it leads to the opposite conclusion.

[54]. In 10 Community Care Access Centres, 2021 ONSC 5348, the Court considered the issue of a trade union’s right to negotiate pay equity maintenance and set out its reasons for why requiring negotiation between a trade union and an employer in pay equity maintenance does not appear to fulfill the purposes of the Act in some cases. At paragraph 44, the Court held:

Before going on, I wish to step back and consider the overall context in which these matters proceed. The Pay Equity Act is set against a ubiquitous form of discrimination and demonstrates our collective effort to respond to it. It is quasi-constitutional human rights legislation directed at redressing systemic gender discrimination. As such, it does not just touch the parties. It implements a value that is fundamental to our society and reflects on us all. The Pay Equity Act demonstrates our collective belief that this discrimination is wrong and should be rectified. As perceived by the Ontario Nurses’ Association this understanding demonstrates a context calling for obligatory negotiations. Contrary to a statement made by the Pay Equity Hearings Tribunal referencing the decision of this Court in Canadian Union of Public Employees, Local 1999 v. Lakeridge Health Corp.[62] the Ontario Nurses’ Association submits that such a requirement would further the purpose of the Act to facilitate a collaborative approach by employers and trade unions to maintain pay equity.[63] The statutory interpretation applied by the Pay Equity Hearings Tribunal was “contrary to the express human rights and quasi-constitutional purpose of the Pay Equity Act because it enfeebled the role of a trade union and blunted mandatory bargaining as a key remedial mechanism in unionized workplaces.”[64] There is a different perspective. Labour law and labour relations, as they operate in the province of Ontario, are founded on the understanding that the relationship between employers and unionized employees is essentially oppositional, adversarial and based on confrontational processes. Collective bargaining follows this structure. Rather than facilitate resolution, it can lead to extended discussion, disagreement and disputes. This may be appropriate for a relationship between a union and employer which, at its root is a struggle for a better position within the relationship. It is not appropriate where the goal runs beyond the parties and seeks to move a broader social issue forward. The balance may lie in allowing for negotiations where the parties see the benefit but, where negotiations fail, to have it arranged so that the issue can be moved into, and determined through, an administrative process. This understanding of the context and the process has been incorporated into and recognized by:

[emphasis added]

[55]. At paragraph 72, the Court held:

The application to the Pay Equity Hearings Tribunal was with respect to one of the issues determined by the Review Officer. Was the employer obliged to negotiate with the bargaining agent? Really the question was whether the employer should be required to negotiate amendments to the existing plan or a new plan when it believed the existing plan to still be appropriate. One has to wonder how compelling a party to negotiate in such circumstances can be seen as a meaningful way to progress the issue of gender discrimination. This was dealt with by the parties as a labour relations disagreement. The union wants to manage the state of pay equity as it perceives it. If it has the right to negotiation as it claims, it need only provide notice that it is of a view that there is a changed circumstance and force the employer to the table. The employers began the process of negotiation but concluded that, in the situation they could not be compelled to do so. They withdrew. They do not want to bend to what they see as the unjustified “view” of the union. As it is, the determination to be made will not affect this situation. The merits have been dealt with. This is a case brought by the union to determine who is in control of pay equity issues as between the unions (bargaining agents) and employers. It is not either of the parties. Pursuant to the Pay Equity Act it is the Pay Equity Commission that is to deal with our collective concern for pay inequity based on gender. The Pay Equity Commission controls and directs the means by which the discrimination pay equity concerns represent is to be resolved if the parties are unable to acknowledge and agree that there is a problem and deal with it.

[emphasis added]

[56]. At paragraph 91 the Court held:

The [sic] confirms what was said earlier in these reasons. The Pay Equity Act is directed to resolving a form of systemic gender discrimination. It seeks to solve an issue not just between the parties but to implement a value of concern to our society as a whole. If those involved cannot deal with the issue at hand, it is not to be allowed to get lost in some internecine battle about the state of the existing pay equity plan and whether negotiations must proceed because that plan is no longer appropriate. It will be resolved by the administrative processes in place through the broad authority given to the Commission, its Review Officers and the Pay Equity Hearings Tribunal. It is, of course, possible for an Order of a Review Officer or a decision of the Tribunal to direct that negotiations take place. In fact, it seems likely that any effort made by a Review Officer to settle the matter would be a form of negotiation, albeit one with a third-party facilitator, being the Review Officer, taking part. However, the authority of the Review Officer and Tribunal is much broader than requiring negotiations be completed. That authority is directed to resolving the discriminatory effect of an absence of pay equity.

[emphasis added]

[57]. The most favourable interpretation of the TOR’s reference to pay equity maintenance is that it is “an agreement to agree”. The Tribunal has recently considered the enforceability of “agreements to agree” to a pay equity maintenance process in a similar context. In Canadian Blood Services, 2023 CanLII 93702 (ON PEHT), the Tribunal held that agreements to agree to a maintenance procedure in the future are not binding. At paragraph 60 of that decision, the Tribunal held:

Likewise, the applicant’s submission that the terms of Article H are wholly unclear because processes for how the parties are to resolve any issues that arise “in a timely manner” does not assist the applicant. Rather, the applicant’s general argument that the parties were not precise about the terms of their agreement is more akin to an argument that essential terms of Article H (specifically Article H.19) have not been settled or agreed upon, which in contract law could constitute an “agreement to agree” and is not enforceable. Agreements to agree are generally considered not binding contracts because the parties have left material terms of the contract to be agreed in the future, therefore lacking the necessary consideration to constitute a valid contract. In Bawitko Investments Ltd. v. Kernels Popcorn Ltd. 1991 CanLII 2734 (ON CA), the Court reiterated this principle at page 13:

[W]hen the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself.

[58]. This means that where a trade union wants the Tribunal to uphold an agreement to negotiate pay equity, it must set out the terms of the maintenance procedure that is to be used, as opposed to relying on a term that the union and employer will agree on a maintenance procedure after the pay equity plan, or amended plan, is completed.

[59]. In the Tribunal’s view, the extreme delay caused by the parties’ disputes over process in this case exemplifies the Court’s and Tribunal’s rationale for not reading a right of negotiation into the Act. The purposes of the Act are rarely served by adding additional layers of mandated negotiations premised on a system that presumes an adversarial bargaining relationship, that can lead to, as referenced by the Court, “extended discussion, disagreement and disputes”.

[60]. This is not to say that that trade unions do not have a crucial role in pay equity maintenance, even if they do not have a statutory right to negotiate pay equity maintenance with the employer. They absolutely hold a crucial function in the pay equity maintenance process. On this point, the Tribunal reiterates paragraph 71 of Canadian Blood Services, supra, where it held:

While the obligation to ensure pay equity is maintained does not include an obligation to negotiate with the bargaining agent, the bargaining agent retains the right, and obligation, to raise pay equity maintenance issues with the employer when identified, and to file an application with Review Services on behalf of its members if it has reason to believe that pay equity has not been maintained in accordance with the Act. The manner and forum of how these discussions occur can vary from bargaining relationship to bargaining relationship, but the bargaining agent, as the exclusive entity that can raise pay equity issues on behalf of its members to Review Services possesses an important role in maintaining pay equity.

[61]. Accordingly, the Tribunal does not agree that the Review Officer was unreasonable in her conclusion that the TOR are now “spent”. The purpose for the TOR has been fulfilled through the processes before Review Services and this Tribunal.

Was Banding Reasonable in the Pay Equity Plans Ordered by the Review Officer?

[62]. The applicant submitted that the Review Officer’s decision to order pay equity plans that contained pay bands was unreasonable. The applicant was ardent in its position that the pay bands were unnecessary because obvious job-to-job comparisons could be made without a banding structure. The applicant relied on the fact that there are only a small number of job classes in the pay equity plans and suggested that the only purpose for bands was to artificially include lower paying male comparators into the pay band, which is contrary to the purposes of the Act, and the Pay Equity Office’s bulletin on the use of banding.

[63]. The School Board submitted that pay bands are common in pay equity, and the OSSTF’s witness admitted as such. The School Board highlighted that the OSSTF consistently argued that the job classes they wanted to be the male comparators were “more comparable” to the male comparator that fell within the same band, but that is not what the Act requires. The School Board submitted it is clear what male job classes the OSSTF prefers, but preferences are not the test, and the Review Officer’s plans are not unreasonable.

[64]. In cases where a Review Officer has been directed to prepare a pay equity plan pursuant to an order under section 25(1)(a) of the Act, the Tribunal provides deference to the choices made by the Review Officer in the same way that the Tribunal provides deference to a deemed approved plan. At paragraph 33 of the Brockville General Hospital, 2019 CanLII 113536 (ON PEHT), the Tribunal explains that deference is provided because the job evaluation process invokes a range of reasonable options that are possible:

The starting point for this analysis is that the BGH-CUPE pay equity plan was amended as per the direction and oversight of the Pay Equity Commission Review Services (“Review Services”). These deemed approved pay equity plans are given deference from the Tribunal because the job evaluation process is not an exact science, and a range of reasonable outcomes is possible. At paragraph 21 of Centennial College, supra, the Tribunal held that parties to a plan are held to a reasonableness standard with respect to how they evaluated the different job classes:

As set out above, the Tribunal has consistently refused to inquire into complaints about a deemed approved plan that have not made out a prima facie case of a contravention of Part I of the Act. The case law is succinctly summarized in at paragraph 9:

The standard of review to be used when there is an allegation that a deemed approved plan contravenes the Act has now been established by Tribunal jurisprudence. Correctness is the appropriate standard when reviewing whether a plan contravenes a precise provision of the Act, and reasonableness is the appropriate standard when deciding whether a plan contravenes a provision that is not capable of exact application, but implies a range or an exercise of discretion. Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73; Ottawa Board of Education (No. 2) (1996), 7 P.E.R. 9; Parry Sound District General Hospital (No. 1) (1995), 6 P.E.R. 124.

[65]. In Bluewater Health, 2023 CanLII 54823 (ON PEHT), the Tribunal confirmed that a pay equity plan created by a Review Officer pursuant to an order made under section 25(1)(a) of the Act attracts the same level of deference and reasonableness standard as when a deemed approved pay equity plan is challenged. At paragraph 62 of that decision, the Tribunal held:

The parties retain their rights pursuant to section 25(4)(d) of the Act. The parties are advised that if they challenge the plan prepared by the review officer, that the Tribunal will review the plan on the same reasonableness standard which the Tribunal reviews challenges to deemed approved pay equity plans.

[66]. The rationale for providing Review Officers with the same level of deference as a deemed approved plan is that section 33 of the Act confirms that the Pay Equity Commission is responsible for the enforcement of the Act. The Pay Equity Commission is also the statutory entity that deems posted pay equity plans approved if they are not objected to. Section 14(5) of the Act also confirms that pay equity plans are deemed approved by the Commission. It states:

When a pay equity plan has been executed by an employer and a bargaining agent, the plan shall be deemed to have been approved by the Commission and, on the day provided for in the plan, the employer shall make the first adjustments in compensation required to achieve pay equity

[emphasis added]

[67]. The Pay Equity Commission is statutorily required to put the interests of enforcing the Act ahead of either party’s interests. There is no basis to assume, and none was suggested, that the Review Officer’s order was motivated by any other reason than upholding the mandate of the Pay Equity Office. In this case, both parties made their arguments with the understanding that the Review Officer’s Order is reviewed on the reasonableness standard.

[68]. The heart of this dispute revolves around the definition of the phrases “equal or comparable value” and when “more than one comparison is possible”.

[69]. Section 6(1) of the Act states:

For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value

[emphasis added]

[70]. Section 6(3) of the Act states:

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]

[71]. In Sinai Health, supra, the Tribunal explained that applicants do not get to choose their job class’s male comparator. Rather, comparability is determined after comparing the value of job classes that were evaluated using a GNCS. At paragraph 46, the Tribunal held:

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.

[72]. In pay equity plans, it is common for there to be more than one male job class that falls within the definition of “equal or comparable” to female job classes, and it is important to note that the Act does not say “equal or most comparable” nor does the Act include any other qualifier to the word “comparable”.

[73]. Banding is a well-established and common method for determining comparability in a pay equity plan. This practice has been accepted by the Pay Equity Commission as a method of determining comparability between job classes, by both the Pay Equity Office and the Tribunal. The OSSTF relied on the Pay Equity Office’s bulletin about banding during this proceeding.

[74]. In AG Simpson Automotive Inc. (Re), supra, the Tribunal explained that there are no fixed rules concerning methods of job class comparison and that discretion is given to employers (to the Review Officer in this case) when banding is used so long that it is reasonable and consistent with the Act. At paragraph 17 of AG Simpson Automotive Inc. (Re), supra, the Tribunal held:

17. 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.

[75]. When considering whether banding for pay equity purposes has been done in a manner “consistent with the purpose and intent of the Pay Equity Act”, the Tribunal reviews whether the banding structure is reasonable, and that analysis must be done in the context of the case before it. The Tribunal must be mindful when considering these issues with small numbers of job classes, as small sample sizes have the potential to appear skewed one way or another, when there are reasonable rationales for the decisions made and the outcomes generated. As such, the Tribunal must review the entire structure of plan to determine whether it complies with the Act.

[76]. In this case, the Tribunal finds that that the construction of the bands was consistently done. In both plans, the Review Officer determined that the starting point value for the lowest pay band, Band “A”, would be the closest number rounded down to the nearest 10 from the lowest rated job class. In one plan, the lowest rated job class was a female job class and in the other it was a male job class so there appears to be no gender bias to the starting point of the banding structure. This is 610 points for the O/C plan where the School Office Assistant was evaluated at 612 points, and 560 points for the EA plan where the Maintenance Lead Hand was evaluated at 563 points.

[77]. The OSSTF argued that because the pay equity plans start at different point values, that is evidence, or an inference can be drawn of gerrymandering the bands such that they are not compliant with the purpose and intent of the Act. The Tribunal disagrees. As set out above, the male job classes were scored differently by each of the JJECs. As such, it makes complete sense to the Tribunal that the bands start at different point values. Had the JJEC’s evaluated the male job classes consistently, and there were unexplainable different starting point values, then such an argument may be more persuasive. However, that did not happen in this case, and there is a reasonable rationale on the face of the pay equity plans for how the Review Officer determined the starting and end point values for each of the pay equity plans.

[78]. From there, the plans were built out in equal 30-point bands. Each of the bands has a male job class that falls within it, so there are no empty bands and no bands without any male comparators. In the O/C plan, it happened to be that the School Office Administrator job class is at the top of the highest band, but it was also the highest rated job class in the plan, 87 points higher than the lowest rated job class. This resulted in every job class fitting within a three 30-point banding structure. To compare, the EA plan has a 96.5 point spread, resulting in four 30-point bands. There are male comparators rated higher than the only female job class in this plan, but there is no dispute between the parties that the Educational Assistant does not have a male comparator.

[79]. The next question is whether 30 points is a reasonable point spread on the facts of this case. 30 points in this evaluation structure accounts for a 3% difference in score as the evaluation is out of a possible 1000 points. This is not a significant difference at all in these pay equity plans, and it is difficult to find that two job classes which are rated within 3% of one another are not “equal or comparable” in this pay equity context. This is particularly true in this case when we see the impact of small differences in the subfactor ratings. For example, a half-level rating difference in the Responsibility for Others (2.5 vs 3) subfactor accounted for a 14 point, or 1.4% difference. A single level difference in that same subfactor, Responsibility for Others (2 vs 3), is 28 points, or 2.8%, which is essentially one band, and that is only one of thirteen subfactors.

[80]. Therefore, in the context of this case, the Tribunal finds that if after evaluating two job classes on 13 subfactors, and the result is that their evaluations fall within 30 points of one another, it is difficult to conclude that they are not “equal or comparable”, let alone to find that such a conclusion is unreasonable.

[81]. In the Tribunal’s view, the best example for why a 30-point band is reasonable in this case is because the JJECs rated the same male job class differently by over 50 points (almost two full bandwidths), twice. There cannot be a better example of a comparison of two “equal or comparable” evaluations than a singular job class being compared against itself. It’s the same job, so it cannot be anything other than “equal or comparable”. However, in this case, the same male job classes were evaluated using the same GNCS, but yielded different evaluations with differences of 14, 25, 28, 56.5 and 58 points (an average of 35.9 points). In the Tribunal’s view, it must be that if two different job classes which are evaluated within 30 points of one another fall within the definition “equal or comparable” for the purposes of the Act if two JJECs could apply the GNCS to the same job class and get a range that is greater than one full band on average.

[82]. To provide a contrasting example of banding structures which may have appeared to be unreasonable to the Tribunal in the context of this case, would be if the Review Officer had stretched the top band on the O/C bargaining unit by 40 points instead of a uniform 30 points to capture the School Office Administrator and the EMS Coordinator job classes with the HVAC Technician job class. If inconsistent bands were applied that seemed to capture lower paid male job classes, then there would be cause for the Tribunal to be concerned that the band had been gerrymandered to ensure a “non-comparable” male job class is inappropriately included in a higher band. Likewise, if the Review Officer had used a 30-point banding structure for one bargaining unit, but a 50-point banding structure for another based on the same GNCS, that ensured that a lower paid male comparator is captured in higher pay bands, then there would be cause for an explanation for how that would be pay equity compliant. However, nothing like that happened in this case, and therefore, the Tribunal finds that the banding design implemented by the Review officer is not unreasonable.

[83]. To reiterate, decisions made in pay equity processes can result in a range of reasonable outcomes, if the Review Officer had ordered pay equity plans consistent with OSSTF’s proposal not to use a banding structure, or consistent with its without prejudice banding proposal, those pay equity plans could also have been found reasonable. However, the Tribunal does not, and should not, make determinations about what it would have done had it held the pen in drafting the plan, or choose what it subjectively feels is “most reasonable” or “most comparable”.

[84]. Furthermore, in the Tribunal’s view, attempting to further define what is “equal or comparable” with bright lines will only serve to shift where the disputes between a bargaining agent and employer will occur. Instead, what job classes are determined to be “equal or comparable” should be determined on the evidence of each case.

[85]. Another reason why banding is a helpful method of determining comparability is because it establishes a structure in which newly created job classes can be slotted into after they are evaluated or establish new comparators after existing ones become eliminated. In this case, the DECE female job class was created after the parties started the process of trying to amend the pay equity plans. Once the new job class is evaluated, it falls within the appropriate band based on its score and the male comparator(s) are the male job classes that are in the same band. This reduces potential disputes between the parties, and with these parties, could reduce the potential delay in resolving the placement of newly created classifications by several years.

[86]. Similarly, when a male job class is eliminated, banding structures can ensure that female job classes continue to have at least one male comparator. For example, in this case, there are at least two male job classes in each band with a female comparator. The genesis of this entire case was when the Maintenance II and III job classes were eliminated, there were no preselected or obvious male comparators set out in the deemed approved plans, and the resulting disputes have resulted in a process that has lasted almost a quarter-century.

[87]. The Tribunal finds that the banding structure ordered by the Review Officer was reasonable, and as such, the male comparators set out in the pay equity plans are also reasonable.

[88]. Accordingly, the Tribunal confirms the structure of the pay equity plans ordered by the Review Officer.

Retroactivity

[89]. The OSSTF submitted that the Review Officer’s decision to set the retroactivity date to December 18, 2018 is unreasonable.

[90]. The rationale provided for this date in the Order is that the Review Officer accepted “the Tribunal’s conclusion that based on the information before it, the [School] Board had not breached its duty to maintain compensation practices that provide for pay equity under the existing deemed approved plan, as of the date of that decision”. The Review Officer continued “I propose December 18, 2018 as the retro active adjustment date for maintenance purposes, unless an earlier retroactive date is factually verified and warranted or by agreement of the parties (e.g. due to verifiable changes in duties and/or responsibilities or creation of the new Early Childhood Educator job class in July 2010 or other new job classes).

[91]. The Review Officer concluded that “it was not unreasonable to have interpreted paragraph 134 of the PEHT’s 2018 Decision to mean that the equally applied across-the-board increases was evidence of pay equity compliant compensation practices since June 2000. Nor is it unreasonable to use the PEHT’s December 17, 2018 decision date as the retroactive adjustment date for maintenance purposes once male comparators are selected”.

[92]. In the Tribunal’s view, the Review Officer’s conclusions about retroactivity, specifically her interpretation of paragraph 134 of the 2018 Decision are unreasonable. In the 2018 Decision, the Tribunal did not conclude that pay equity had been maintained up to the date of that decision as suggested in the Order. Rather, the Tribunal held that the issue of whether pay equity had been maintained was premature as it had not been raised with Review Services and was an issue that could not be determined until the male comparators were established. At paragraphs 133 and 134 of the 2018 Decision, the Tribunal wrote:

133. To the extent that OSSTF says the Board breached its duty to maintain pay equity by failing to address changes in the job content of female job classes in the EA and O/C bargaining units, that allegation raises a substantive issue that, in my view, was not placed before the Review Officer and was not addressed by the Review Officer in the Notice of Decision issued in either of these matters. I have reviewed the Notice of Decision that was issued for the EA unit and for the O/C unit, and it is apparent from the content of those documents that the Review Officer did not turn her mind to the issue of changed job content in her assessment of the Board’s obligation to maintain pay equity. Moreover, there is no evidence before me that OSSTF raised this issue squarely with the Review Officer. Indeed, in her final reply submissions of June 19, 2018, OSSTF conceded that “[t]he Board is correct that these [job content changes] were not fully canvassed before the Officer, and we have accordingly not made much of them in argument.” Accordingly, while there may well be pay equity maintenance issues arising from changes in the job duties of female job classes (or the introduction of a new classification in both the EA and the O/C units) those issues have not yet been the subject of investigation and mediation by Review Services, and are not properly before the Tribunal at this point in these proceedings.

134. There was no evidence adduced in the hearing concerning the development of a wage gap between the female job classes in either the EA or the O/C bargaining units and their male comparators in the PM unit since the posting of the EA and O/C pay equity plans in 2000. That appears to be because across-the-board wage increases resulting from collective bargaining over the years since 2000 have not varied from one bargaining unit to another. Thus, given the terms of the original pay equity plans, it cannot be said that the female job classes have lost ground in compensation vis-à-vis the male comparators, at least until the parties reach agreement on the new male comparators. Then there may well be obvious measures that the Board will have to consider in order to meet its statutory duty under subsection 7(1) of the Act. That remains to be seen. At this point in time, however, the Tribunal is left to conclude that, based on the information before it, the Board has not breached its duty to maintain compensation practices that provide for pay equity.

(emphasis added)

[93]. Rather, the Tribunal held that there “may be obvious measures” that would have to be taken once the male comparators were determined. In this case, it was determined after the male comparators were selected, that some of the male comparators had higher job rates than female job classes and those gaps required immediate rectification. The Review Officer considered and concluded that there were “no permissible differences, within the meaning of section 8 of the Pay Equity Act, were found between the job rates of female job classes and male job classes”.

[94]. In the Tribunal’s view, retroactive adjustments to address those gender pay gaps are the “obvious measures” that required addressing that it referred to in its 2018 Decision.

[95]. These wage differentials did not occur on December 18, 2018. Nothing happened with respect to any of the affected job classes on that date, except that it happens to be the day after the 2018 Decision was released. Nothing really happened at all with respect to pay equity from 2010 to December 17, 2018. As such, it is clear that the wage gap existed before the 2018 decision was released, and the Review Officer’s analysis does not explain how or why December 18, 2018 could be a reasonable retroactivity date outside of a mistaken interpretation of the 2018 Decision.

[96]. The question for the Tribunal is what is the appropriate date for retroactivity?

[97]. The OSSTF submitted that the retroactivity should go back to 2001, when the parties agreed that the pay equity plans lacked male comparators. The OSSTF submitted that the parties understood that the plans would be retroactive to 2001 when they commenced the process to amend the plans. The OSSTF provided a chart of the wage differentials in the collective agreements that go back to 2001. However, during her testimony, Ms. Wallace admitted that she used the Maintenance II and III classifications for the 2001 – 2004 dates because some male comparators did not exist until 2004.

[98]. The School Board submitted that the “ghost comparators” of the Maintenance II and III classifications should continue to apply until the amended pay equity plans were implemented (however, the School Board did not take issue with the retroactivity date being December 18, 2018, which predates the Order). In the alternative, the School Board argued that the OSSTF’s best case for retroactivity is 2010, once the jobs were evaluated as that was the first time that the parties had evaluated the job information of the new male comparators.

[99]. Both parties relied, for various propositions, on the fact that neither party had led evidence about the job information for the Maintenance II and III job classes, and no one led evidence about the differences in the job duties between those classifications and the trade-based classifications that replaced them during their arguments.

[100]. This vacuum of critical evidence makes the analysis on this issue much more difficult because the Tribunal must decide issues based on the evidence before it and be mindful about making presumptions about what happened two decades ago in the absence of evidence.

[101]. The starting point for determining when the retroactivity date should be is that the 2000 deemed approved plan exists. These plans were agreed to by the parties. It was deemed approved by the Commission pursuant to section 14(5) of the Act and therefore accepted as pay equity compliant by operation of the Act. Therefore, in 2000, the male comparators for the female job classes were the Maintenance II and III job classes and the female job classes were compared at a percentage of their male comparators’ job rate.

[102]. Parties to a collective agreement are statutorily prohibited from negotiating pay equity plans that are inconsistent with the purposes of the Act. Section 7(2) of the Act states:

No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1)

[103]. The Tribunal cannot and will not presume that the parties knowingly agreed to non-compliant pay equity plans given their statutory obligations. Therefore, in 2000, there must have been some pay equity rationale for the thresholds, it is just that the Tribunal, and the parties, are currently unaware what that rationale was. This is to say that when the pay equity plans became deemed approved and the pay adjustments had been made, the O/C and EA bargaining units were in pay equity compliance. This is not a case where pay equity has never been achieved. It was achieved in 2000.

[104]. In 2001, the PM bargaining unit had its job classification structure changed from the Maintenance II and III classifications to trade-based classifications. The Tribunal did not hear evidence regarding the differences between any of the trade-based job classes and the Maintenance II and III job classes. As set out above, some of the male job classes, including the Refrigeration Mechanic job class did not exist in 2001, and did not for a few more years following the parties’ agreement to amend the pay equity plan using new male comparators.

[105]. As of 2001, in the absence of any evidence to the contrary, the Tribunal does not presume that the trade specific job classes (ie HVAC Technician, Electrician, EMS Coordinator etc.) possessed the identical skill, effort, responsibilities, and working conditions as the Maintenance II or III job classes, such that the Maintenance II and III job classes were simply renamed. The clearest evidence of this is that the various male job classes were all scored differently based on different information captured in the JAQs. As such, it is not as simple as finding that the Maintenance II and III classifications continued to exist just with different names, such that the 92% threshold was deemed pay equity compliant until the 2018 Decision was released.

[106]. Likewise, without evidence about differences in the skill, effort, responsibilities, qualifications, and working conditions of the trade-based job classes, it is also not as simple as the OSSTF asks the Tribunal to accept. In the absence of evidence, the Tribunal cannot find that the PM bargaining unit classification structure changed in 2001 in such a way that the deemed approved pay equity plans, that were negotiated by the parties and posted only approximately one year earlier, instantly became noncompliant with the Act for the purpose of pay equity maintenance. This is especially true given that some job classes used as male comparators did not exist in 2001 when the PM bargaining unit job classes were restructured.

[107]. This is where the School Board argued that the pay equity concept of “ghost comparators” can be applied to fill in all or part of the evidence. “Ghost comparators” can be relied on as a placeholder after a pay equity plan was established with a job-to-job male comparator, but then that male comparator job class becomes vacant or is eliminated. The concept is that since pay equity was established when a “ghost” male job class was a bona fide male comparator, that male comparator can continue to be relied on as if it continued to exist until it can be replaced by an appropriate existing male comparator, or possibly a change in method such as using a proportional value line. When a “ghost comparator” is used for pay equity maintenance, the parties treat it as having received the same across-the-board increases as the rest of the bargaining unit where it was situated (in this case the PM bargaining unit). In the Regional Municipality of Niagara v. Canadian Union of Public Employees, 1999 CanLII 14829, the Tribunal referred to this concept as a “vanishing comparator”. At paragraphs 18 and 19, it held:

18. The significant fact in this case is that there has been no wage impact resulting from the vacancy of the male comparator job class at issue. The affected female job classes were not denied wage increases received by other job classes. In fact, none of the employees covered by the pay equity plan have received any salary or benefits increases since the vacancy commenced. Moreover, Niagara, in a letter dated December 16, 1994, attempted to come up with a lasting solution by agreeing to provide the female job classes with the same salary and benefits increases as other jobs in the pay equity plan on an on-going basis. Providing across-the-board increases to all employees covered by a plan is one of the possible approaches to a vanishing comparator problem which is outlined in the Pay Equity Commission publication referred to above. The publication notes that replacing the male comparator is one way, but not the only way, to address an on-going vacancy.

19. Notwithstanding the on-going vacancy of the male job class, pay equity has been achieved and maintained to date in accordance with s.7 of the legislation. There has not been a widening wage gap as might be the case in any situation in which increases were given but not on an across-the-board basis. Accordingly, the mere fact that the male job class has remained vacant has not had the effect, in this case, of making the plan “not appropriate for the female job class[es]”, per s.22(2)(b). This can be contrasted with a situation where, for example, there has been a substantive change in the job content of a comparator job class. In fact, if the new INS Field Assistant position, re-posted during our hearing, has been or will be filled, a change in the valuing of that position may affect its appropriateness as a comparator for the relevant female job classes.

[108]. However, the reliance on ghost comparators to demonstrate that pay equity has been maintained should not be indefinite or significantly delayed when there are existing male job classes “of equal or comparable value” that can be used as male comparators. The Court of Appeal held in Participating Nursing Homes, 2021 ONCA 148, that female job classes require ongoing male comparators in maintenance.

[109]. It also cannot be that pay equity adjustments could be denied during a time female job classes would otherwise be entitled to a pay equity adjustment because a party delays the pay equity process. For example, in this case, it would be an absurd result if, after the Tribunal has found the School Board to have negotiated the amended pay equity plan in bad faith (as per the 2018 Decision), to then have the School Board benefit, at the expense of the employees working in female job classes who are entitled to the retroactive adjustment, from the 8+ year delay that occurred while the parties litigated that issue. Such a result would be contrary to the purpose of the Act and could only serve to encourage parties to delay concluding pay equity plans or amendments to those plans to avoid their pay equity obligations.

[110]. The evidence in this case is that the parties did not have sufficient job information to evaluate any of the new trade-based job classifications until 2007. At paragraph 34 the 2018 Decision, the Tribunal noted:

… At that stage in 2003, the parties appear to have been satisfied that the job content for the PM unit job classes was sufficiently captured by “job context sheets” prepared by the Board to document the PM unit classifications. Several years later, they changed their minds, and agreed to the completion of JAQs for the maintenance positions.

[111]. In the 2018 Decision, the Tribunal noted that there was a joint, unexplainable two-year delay from 2004 to 2006 in the process. At paragraph 35, the Tribunal held:

… In fact, it would appear that nothing of substance occurred on the pay equity front in the workplace from the fall of 2004 until the fall of 2006 …

[112]. However, the inadequacy of the job context sheets was not raised until 2007. At paragraph 52 of the 2018 Decision, the Tribunal noted:

Early on in the evaluation process in 2007, the JJECs expressed concern regarding the job context sheets describing the job classes in the PM unit. The JJEC members felt the job context sheets were inadequate to the purpose due to their generic content. As a result, Ms. Speare obtained Ms. Soostar’s consent to have the incumbents in PM unit jobs prepare job analysis questionnaires, with supervisory oversight, and for those JAQs to be used, in addition to the job context sheets, by the EA JJEC and the O/C JJEC. Ms. Speare trained the PM unit incumbents in filling out their JAQs. The JAQs for the PM unit jobs were completed, reviewed by the applicable supervisors, vetted by Ms. Soostar, and ready for use by the JJECs in the fall of 2007.

[113]. Job information questionnaires/job descriptions are point-in-time documents that capture the relevant job information for pay equity purposes. As discussed above, the Tribunal did not hear any evidence about the statutory factors of the trade-based job classes as they existed at anytime from 2001 to 2007, or any evidence about whether the job classes stayed the same or differed. The Tribunal just does not have this evidence before it, and this is where the parties’ joint delay early in this process has hampered the Tribunal’s ability to rely on concrete evidence about when the wage differentials between the female job classes and male comparators originated. As such, it must rely on the best evidence that has bene provided by the parties.

[114]. The Tribunal finds that the appropriate retroactivity date based on the evidence before it is in “the fall of 2007” when the JAQs that were used to evaluate the male job classes in the PM unit were finalized. As of this time in 2007, the parties had the necessary pay equity information about the new male comparators which were evaluated and compared with the female job classes. The parties also have records of the relative job rates of the female job classes and their male comparators during this period onwards.

[115]. The retroactivity date that makes the most sense to the Tribunal is September 1, 2007 since the JAQ’s were noted as being completed in the “fall” of 2007 and September 1^st appears to be the date the collective agreements reflect across-the-board increases that are provided in the year that the JAQs were completed.

[116]. The Tribunal disagrees with the School Board’s submission that 2010 should be the earliest retroactivity date because that is when the job evaluations were completed for the same reason as why 2018 is not an appropriate date. The parties’ delay in evaluating the positions does not change the fact that the job information about the male job classes was collected in 2007 and it has been demonstrated to the Tribunal that female job classes had lower job rates as compared to their (now determined) male comparators during this period. Pushing the retroactivity date forward to 2010, could only serve to encourage parties who do not wish to finalize a pay equity plan because pay equity adjustments are owing, to delay the pay equity process to save money. That would not be consistent with the purposes of the Act, as financial concerns have repeatedly been explicitly rejected as a reason not to provide pay equity adjustments.

[117]. Accordingly, the Tribunal finds that the Review Officer’s decision to set the retroactivity date as December 18, 2018 was unreasonable and the appropriate retroactivity date in this case is September 1, 2007.

[118]. Lastly, the Tribunal finds that the fact that a 0.25% difference was provided to the Maintenance II and III job classes in the 2001 to 2004 collective agreement over and above what the O/C bargaining unit received must be rectified back to the time those increases were provided to the ghost comparators. The Tribunal does not accept that this matter must go back to Review Services as the issue of whether pay equity has been maintained and retroactivity has been squarely considered by Review Services. The fact that new information was brought to light during this proceeding does not change the fact that the issue of retroactivity and retroactivity date has been squarely considered by Review Services.

Conclusion and Orders

[119]. Section 25(2)(d) of the Act provides the Tribunal with the jurisdiction to “confirm, vary or revoke orders of review officers”.

[120]. The Tribunal confirms that the pay equity plans ordered by the Review Officer are reasonable and compliant with the Act in terms of the banding structure and male comparators.

[121]. The Tribunal confirms that the purpose of the parties’ TOR has been completed.

[122]. The Tribunal hereby varies the Order dated November 3, 2020 in the following ways:

a) The retroactive date for the Order shall be September 1, 2007;

b) within 120 days of this Decision, the parties shall, using the existing GNCS, evaluate and find a male comparator for the DECE female job class in the EABU, identifying the applicable and factually verified retroactivity date and provide OSSTF and the Review Officer with all relevant information relied on to maintain pay equity, including any calculations of adjustments, with interest, if applicable; and

c) Within 120 days of this Decision, the School Board shall calculate all pay equity adjustments owing, with interest using the Courts of Justice Act rates, to the retroactive date set out in paragraph 122 (a) above. The School Board shall provide these calculations to the OSSTF; and

d) all adjustments in compensation, make payment to current and former employees with interest and provide OSSTF and the Review Officer with proof of payment shall be completed with 180 days of this Decision.

[123]. The Tribunal does not make any findings as to the quantum of the retroactive payments owing. If there are any disputes between the parties regarding the calculations referenced in paragraph 122(c) above, the parties shall write to the Tribunal within 150 days of the date of this Order and request a hearing before this panel of the Tribunal to be scheduled. In any such request, the parties shall provide no less than three mutually available dates that falls within 60 days of their request for a hearing.

"M. David Ross" M. David Ross, Vice-Chair

1The maximum total points being 1000. 58/1000 = 5.8%

2the agreement between the parties that pay equity was achieved by paying female job classes 92% of the male comparator’s job rate