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WORKPLACE DISCRIMINATION - Remedies - Equal pay legislation

Thursday, May 06, 2021 @ 6:17 AM  


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Appeal by the Participating Nursing Homes from a Divisional Court decision setting aside a decision of the Pay Equity Hearings Tribunal that held the proxy method was not to be used to maintain pay equity under the Pay Equity Act. In the nursing homes in question, there were no male job classes with which female job classes could be directly compared. For women in these workplaces, the Act provided a proxy method whereby a female job class, from an establishment where pay equity had already been achieved using a male comparator, was deemed to be the male job class. The parties disputed whether the proxy method was also to be used in ensuring that pay equity was maintained. The Tribunal found that the proxy method was extraordinary and viewed an ongoing requirement to obtain information from the proxy employer as a substantial practical impediment. The Divisional Court determined that while the Act did not contravene s. 15 of the Canadian Charter of Rights and Freedoms (Charter), the Tribunal erred in failing to consider Charter values when interpreting the Act and that the only proportionate balancing of the Charter right of equality with the statutory mandate of the Act, properly construed, required the maintenance of pay equity in predominantly female workplaces through the proxy method of comparison.

HELD: Appeal dismissed. The Tribunal’s decision was unreasonable, as the text, context, scheme and purpose of the Act made it clear that ongoing access to male comparators through the proxy method was required to maintain pay equity. The scheme of the Act was built on the fundamental premise that to redress systemic gender discrimination in compensation, there must be a comparison between male and female job classes. The Act itself indicated that comparison to male job classes was the way to identify systemic discrimination. Had the Tribunal relied on s. 21.13 of the Act which provided that comparison with the proxy job classes was the way to identify systemic discrimination in establishments using the proxy method, it could well have arrived at a different result. All three comparison methods involved a direct or indirect comparison between female and male job classes. It was unreasonable to interpret the Act as doing away with an ongoing deemed male comparator when it came to the employer’s duty to maintain pay equity in female-dominated establishments that used the proxy method to establish pay equity.

Ontario Nurses Assn. v. Participating Nursing Homes, [2021] O.J. No. 1170, Ontario Court of Appeal, G.R. Strathy C.J.O., M.L. Benotto, D.M. Brown, G. Huscroft and B. Zarnett JJ.A., March 9, 2021. Digest No. TLD-May32021010