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Pay Equity (1). Ontario (Health) v. Association of Ontario Midwives
In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal considered systemic discrimination of Ontario midwives by the province. At paras 14-41 it sets out a useful historical and compensation history of midwives.
. Ontario Nurses’ Association v. 10 Community Care Access Centres
In Ontario Nurses’ Association v. 10 Community Care Access Centres (Div Ct, 2021) the Divisional Court reviews the basics of Ontario's pay equity provisions:[1] This is an application for judicial review of a decision made by the Pay Equity Hearings Tribunal.[1] The Pay Equity Act [2] was enacted to address “gender discrimination in the compensation of employees employed in female job classes”.[3] The Pay Equity Hearings Tribunal was established by the legislation.[4] It is one of two parts of the Pay Equity Commission (the other being the Pay Equity Office)[5] set up to administer and where required act in furtherance of implementing the procedures put in place through the Pay Equity Act such that work places, in Ontario, will achieve pay equity and the underlying policy of ending this form of discrimination. As its name implies the Pay Equity Hearings Tribunal is instructed to conduct hearings directed to the resolution of disputes between employees and employers as they navigate the process of establishing and, as in this case, maintaining pay equity.[6] While no specific reference was made in the record or the submissions of counsel, it seems self-evident that the Tribunal exists, in part, to see that the process of moving to pay equity is a fair, equitable and expeditious one. Delay in resolving these disputes could be interpreted as demonstrating a lack of commitment to dealing with the overall problem. The significance of the role of the Pay Equity Hearings Tribunal in moving pay equity concerns through the process and procedures set out in the Pay Equity Act is demonstrated by the comprehensive nature of its authority:30 (1) The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes. The importance of the role of the Tribunal is confirmed by the breadth of its powers.[7] . Ontario Nurses’ Association v. Participating Nursing Homes
In Ontario Nurses’ Association v. Participating Nursing Homes (Ont CA, 2021) the Court of Appeal considers a rare pay equity case, and reviews the basics of the Pay Equity Act. The entire case is useful for pay equity as you don't often see such cases much anymore:[1] The purpose of the Pay Equity Act, R.S.O. 1990, c. P.7 (the “Act”), is to redress systemic gender discrimination in compensation experienced by those in female job classes. To that end, the Act requires employers who are subject to the Act to “establish and maintain compensation practices that provide for pay equity in every establishment of the employer” (emphasis added): Act, s. 7(1).
[2] In establishing pay equity, three different methods of comparison are used. Each involves a comparison between male and female job classes.
[3] In predominantly female workplaces, like the nursing homes in question, there are no male job classes with which female job classes can be directly compared. For women in these workplaces, the Act provides a “proxy” method whereby a female job class, from an establishment where pay equity has already been achieved using a male comparator, is deemed to be the male job class.
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Ontario’s pay equity legislation
[12] The purpose of the Pay Equity Act is clear. The preamble provides that “it is desirable that affirmative action be taken to redress gender discrimination in the compensation of employees employed in female job classes in Ontario.” The body of the Act further confirms:4 (1) The purpose of this Act is to redress systemic gender discrimination in compensation for work performed by employees in female job classes. [13] Section 1(1) of the Act specifies when a job class is a “female job class” and when it is a “male job class”. Generally speaking, a female job class is a job class in which 60 per cent or more of the members are female. Section 1(1) of the Act defines the term “job class” to mean “those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates”.
[14] The Act imposes an obligation to both establish and maintain pay-equity-compliant compensation practices:7 (1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer. [15] As explained in more detail below, systemic discrimination is identified by undertaking a comparison between female job classes and male, or deemed male, job classes in terms of compensation and the value of work performed: Act, ss. 4(2), 21.13. The criterion applied in determining the value of work is “a composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed”: Act, s. 5(1).
[16] The Act prescribes three methods for achieving pay equity: the job-to-job, proportional value and proxy methods.
[17] The job-to-job and proportional value methods involve comparing the value/compensation relationship of female job classes to the value/compensation relationship of male job classes within the employer’s establishment. An “establishment” means all of the employees of an employer employed in a geographic division or divisions.
[18] The Act provides the proxy method for achieving pay equity in establishments without any male job classes. The proxy method is complex, but at its core, it involves comparing a female job class in the seeking employer’s establishment (in this case, the PNH) to a female job class at a proxy employer’s establishment (in this case, Municipal Homes for the Aged (“Municipal Homes”)).
[19] A proxy female job class is used because it has already achieved pay equity by way of comparison to a male job class within the proxy employer’s establishment. The value/compensation relationship of the proxy female job class is compared to the value/compensation relationship of the female job class at the seeking employer’s establishment with a view to determining the adjustments necessary to achieve pay equity for the seeking employer’s employees. In short, the proxy female class functions as the “deemed” male comparator.
[20] To achieve pay equity for all female job classes within the seeking establishment, the female job class that was compared to the proxy female job class becomes the “key female job class”. All other female job classes in the seeking establishment are then evaluated to ensure that the value/compensation relationship for their jobs is equal to that of the key female job class.
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The Act requires female to male comparison
[51] The scheme of the Act is built on the fundamental premise that in order to redress systemic gender discrimination in compensation, there must be a comparison between male and female job classes.
[52] As set out above, the preamble to the Act and s. 4(1) confirm that the purpose of the Act is to redress systemic gender discrimination in compensation for employees in female job classes.
[53] The Act itself indicates that comparison to male job classes is the way to identify systemic discrimination. Section 21.13 provides that, in establishments that use the proxy method, systemic discrimination is identified by comparing a female job class in the seeking establishment with a proxy female class (i.e., deemed male comparator):Systemic gender discrimination
21.13 For the purposes of this Part and despite subsection 4(2), systemic gender discrimination in compensation shall be identified by undertaking comparisons, in terms of compensation and in terms of the value of the work performed, using the proxy method of comparison,
(a) between each key female job class in the seeking employer's establishment and female job classes in a proxy establishment; and
(b) between the female job classes in the seeking employer's establishment that are not key female job classes and the key female job classes in that establishment. [54] Identifying gender discrimination is a key element of the establishment and maintenance of pay equity. Yet, the Tribunal did not consider this section of the Act which applies to establishments that use the proxy method.
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