PEHT Case No: 0460-25-PE
Ontario Nurses' Association, Applicant v The District of Algoma Health Unit, Respondent
BEFORE: M. David Ross, Chair
DECISION OF THE TRIBUNAL: January 27, 2026
This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7 as amended (“the Act”).
In this application, the Ontario Nurses’ Association (“ONA”) requests the Tribunal to order disclosure of the District of Algoma Health Unit’s (“the Employer”) benefits plans going back to 2001, when the parties entered into a Memorandum of Agreement regarding pay equity maintenance.
The Employer has provided a spreadsheet that sets out the benefits and the benefit comparisons going back to 2003. The Employer pled that it reached out to its benefits provider to assist with creating the chart and to set out the differences in various elements of the compensation. The Employer pled that the benefit plans for the past 10 years or so are housed on its intranet.
The Union asserts that the spreadsheet is insufficient for it to perform its role to monitor pay equity maintenance pursuant to section 7(2) of the Act.
The Employer has requested the Tribunal to dismiss the application for timeliness as the Tribunal has held that delays in excess of two decades, such as in the instant case, can constitute an abuse of process. The Employer relied on the Tribunal’s comments in Craigwood Youth Services, 2024 CanLII 122470 (ON PEHT) regarding the prejudicial impact that delay has on adjudicative proceedings. At paragraph 45, the Tribunal held:
Delay also prejudices the quality of the documentary evidence available in an adjudicative proceeding. As time passes, documents can be deleted, destroyed, or lost and witnesses/individuals may forget that helpful documents exist or how to locate them. The Tribunal has commented that while there is no stated limitation period in the Act, there is also no statutory obligation to maintain records relating to pay equity. If there was a statutory obligation to maintain records, then this would alter the analysis of when document retention issues could prejudice a respondent. At paragraph 69 of Toronto Catholic District School Board, supra, the Tribunal held:
Although the Union raised the possibility of appealing the Order in 2008 and again in 2011, we do not find that the Employer was under the obligation to remain prepared for a potential appeal indefinitely. Further, the key prejudice that occurred in this case was unavoidable (retirement, resignation and a death) and could not have been mitigated by any diligence on the party of the Employer. Further, while the Act does not contain a general limitation period for filing a review of an order, the Act also does not include a record keeping obligation, much less require an Employer to maintain records indefinitely so as to defend itself in the event that an applicant seeks review of an Order several years after the fact.
ONA submitted that the analysis of whether delay is prejudicial is contextual as there are no time limits in the Act, and this is not a case where it is alleged that the passage of time has prevented the Employer from providing the requested documents.
ONA submitted that the Tribunal has been clear in its decisions that its role in pay equity maintenance is to monitor and raise concerns if there is a chance that pay equity gaps have re-emerged since the last time that pay equity was achieved.
Decision
ONA is correct that the Tribunal has expressly noted that its role during the maintenance phase, unless there is an agreement between the Employer and Union otherwise, is to act as a check and balance and monitor to help ensure that any pay equity gaps that reemerge are closed.
The Tribunal agrees with ONA that part of that monitoring role includes ensuring that it has the appropriate information to fulfill that role. Benefits are included in the compensation package that could be used to compare the job rates between female job classes and the male job classes that are used as comparators.
The challenge in this case is that ONA is seeking documents that are over two decades old and has not explained why it believes that the information provided in the Employer’s spreadsheet is inaccurate or not credible.
Delay is an issue that the Tribunal is having to address regularly. Many cases coming before the Tribunal involve documents that go back 20 years or more, as in the instant case.
By any calculation, an over two-decade delay in requesting information is presumptively prejudicial, and in this case, warrants a conclusion that the request for those documents is untimely.
The issue is further complicated by the fact that the applicant has not explained to the Tribunal that being provided these documents will reveal that pay equity has not been maintained in accordance with the Act. As such, the request is more akin to a fishing expedition than a genuine belief that those documents will reveal different information, or an allegation that the Employer has hid information.
The Employer has pled that the benefit plans from the past 10 or so years, are housed on the intranet, and the Union’s members have access to those documents. In the Tribunal’s view, if the answer is that the Union’s members could retrieve them, not providing the same documents out of principle is also a challenging response. The Tribunal is also challenged by the fact that the Union has not retrieved those documents themselves if they are accessible to its members. If the documents exist and are already accessible, it seems easy enough to hand them over without litigation.
As the Courts and this Tribunal have said repeatedly over the past few years, pay equity is not intended to be an adversarial process in the same way as traditional labour relations. While adjudicative processes are adversarial in nature, and parties are afforded the procedural protections and fairness associated with our justice system, approaching pay equity matters like collective bargaining, or a grievance arbitration, is not always the best way to advance the stated purpose of the Act. In no way is the Tribunal insinuating that either party does not have objectives of the Act in mind, only that the historical adversarial labour relations approach can influence how difficult or easy resolving disputes such as these can be. For example, in this case, the Union could have at least had the benefit plans that are on the intranet years before the Tribunal having to issue this decision.
Conclusions
In this case, the Tribunal finds that a request for documents going back to 2001, without any evidence to believe that the Employer’s spreadsheet is incorrect, is a fishing expedition, and therefore, an abuse of process as it pertains to the delay in making the request for those documents. The question then turns to what the appropriate timeline for how far back the request is not untimely.
The issue of prejudice of delay is more impactful when documents are not able to be found because of the delay. In this case, both the Union members and the Employer have access to those documents on the intranet, so it is not apparent why to the Tribunal that the Union does not have those in their possession. The Employer is directed to provide those documents to ONA within thirty calendar days of this decision.
Pursuant to the above, this matter is resolved. At this time, there is no suggestion that the Employer’s spreadsheet is inaccurate such that the Tribunal ought to direct the Employer to locate documents that are over 10 years old.
If at a later date, possibly after comparing the documents ordered to be produced in this decision, ONA has a foundational belief that the Employer’s spreadsheet is inaccurate, it may return to the Tribunal with such information, and the Tribunal can reevaluate the Union’s request for documents on those facts.
The Tribunal makes no comment about whether it would be an abuse of process for delay for ONA to raise claims that pay equity has not been maintained going back to 2001. If that claim is made, it will be considered on the facts of a fresh application that is filed first with Review Services.
Any hearing dates are hereby cancelled.
“M. David Ross”
M. David Ross, Chair