



COURT OF APPEAL FOR ONTARIO

CITATION: Participating Nursing Homes v.
    Ontario
Nurses Association, 2021 ONCA 149

DATE: 20210309

DOCKET:
C67496

Strathy C.J.O., Benotto, Brown,
    Huscroft and Zarnett JJ.A.

BETWEEN

Participating Nursing Homes

Applicants (Appellants)

and

Ontario Nurses Association

Respondent (Respondent)

and

Service Employees International
    Union, Local 1

Respondent (Respondent)

David M. Golden and Marco P. Falco, for
    the appellants Participating Nursing Homes

Paul J.J. Cavalluzzo, Adrienne Telford
    and Lara Koerner Yeo, for the respondent Service Employees International Union,
    Local 1

Janet Borowy, Danielle Bisnar, and Andrea
    Sobko, for the respondent Ontario Nurses Association

Lindsay Lawrence and Aaron Hart, for
    the respondent, the Pay Equity Hearings Tribunal

Fay Faraday, for the intervener, the
    Equal Pay Coalition

Heard: October 6 and 7, 2020 by video
    conference

On appeal from the judgment of the
    Divisional Court (Regional Senior Judge Geoffrey B. Morawetz and Justices Robbie
    Gordon and Nancy L. Backhouse), dated April 30, 2019, with reasons reported at
    2019 ONSC 2772, affirming in part a decision of the Pay Equity Hearings
    Tribunal, dated January 21, 2016, with reasons reported at [2016] O.P.E.D. No.
    5.

Benotto J.A.
:

[1]

The Participating Nursing Homes (PNH) appeal
    the decision of the Divisional Court upholding, in part, a decision of the Pay
    Equity Hearings Tribunal. The Tribunal directed the parties to negotiate a gender-neutral
    comparison system (GNCS) for maintaining pay equity. The PNH seek a
    declaration that the
Pay Equity Act
, R.S.O. 1990, c. P.7 (the 
Act
) does not require them to further
    negotiate their maintenance obligation with the respondents by tying the
    maintenance obligation to how the proxy employer historically valued male
    jobs in its establishment in 1994. For the following reasons  to be read with
    the companion appeal released concurrently  I would dismiss the appeal.

BACKGROUND

[2]

The PNH are employers who operate up to 143
    nursing homes in Ontario. The
Ontario
    Nurses Association (ONA) is the bargaining agent representing about 2,100
    registered nurses and allied health professionals working at nursing homes
    across the province. The Service Employees International Union, Local 1
    (SEIU) is the bargaining agent representing a range of health care workers at
    the PNH, including registered practical nurses, personal support workers,
    health care aides, and dietary, housekeeping, and recreational aides.
    (Collectively, the ONA and the SEIU are referred to as the Unions.)

[3]

Employment in the nursing home sector is
    predominantly female. Consequently, the proxy methodology for establishing pay
    equity in applies. The proxy method involves a comparison between a key female
    job class in one employers establishment and an analogous female job class in
    a different (proxy) employers establishment where pay equity has already
    been established by way of comparison with a male job class.

[4]

The female job class from the proxy employer is
    valued pursuant to a GNCS and the relationship between value and compensation
    is thus determined. Pay equity is achieved for the key female job class by
    adjusting its compensation so that the same value/compensation relationship
    exists for both the key female job class and the proxy female job class. Pay
    equity is then achieved for the rest of the seeking employers job classes by
    comparison to the key female job classes.

[5]

The
Act
requires every seeking employer to prepare a pay equity plan including a
    description of the GNCS used for the purposes of making the comparisons.

[6]

In 1995, the PNH and the Unions
    negotiated and executed a pay equity plan for the entire nursing home sector
    using as the proxy employer Unionized Municipal Homes for the Aged Across
    Ontario (Municipal Homes) and designating health care aides as the seeking
    employers key female job class and the proxy female job class. They agreed
    that a total weighted average adjustment of $1.50 per hour would achieve pay
    equity for the health care aides in the employ of the PNH and agreed upon a
    schedule for implementing the required increase for all job classes. The
    parties did not agree on a GNCS and did not use a GNCS to evaluate job classes
    in the PNH and proxy female job classes. The various adjustments contemplated
    by the pay equity plan were implemented, and by 2005 pay equity had been established.

[7]

The issue then became how to maintain pay equity
    as required by the Act.

[8]

The Tribunal directed that the parties negotiate
    a GNCS for these reasons:

Although the $1.50 Plan may have achieved pay
    equity, it did so without applying a GNCS.  So long as the skill, effort,
    responsibility and working conditions of the female job classes in the Homes
    remained unchanged, and they received the same percentage compensation
    increases, the absence of a GNCS had no impact on pay equity
    maintenance.  We have already referred to the uncontradicted evidence
    before us that there have been significant changes in the clientele and the
    duties performed in the Homes that may well impact on the value of the job
    classes.  Those changes make the $1.50 Plan inappropriate because the pay
    equity consequence of them can only be ascertained by evaluating the job
    information using a GNCS, which the Proxy Plans lack.  In the unionized
    environment the selection of a GNCS and its application are matters that the
Act
contemplates will be negotiated between the employer and the
    union.

Pursuant to our
    authority under
section
    25(2)
(g) of the
Act
, the parties are directed to negotiate and endeavor to agree on an
    amendment to the $1.50 Plan to stipulate a GNCS, and to apply that GNCS to
    determine whether any maintenance adjustments are required.

[9]

The Tribunals decision was upheld by the
    Divisional Court.

[10]

The PNH submit that the Tribunals decision was
    unreasonable because it will 
forever
require the PNHs to base their
    pay equity compensation on another employer.

[11]

I disagree.

[12]

First, the Tribunal clearly has the authority to
    require compliance with the Act. A GNCS was neither negotiated nor applied as
    part of the 1995 proxy comparison process. The parties accordingly did not
    determine the gender-neutral value of the work performed by the female job
    classes at either the PNH or Municipal Homes. It was the obligation of the
    employer to prepare a pay equity plan in compliance with the
Act
. It did not do so, and it was within the Tribunals power to
    direct it to comply. Section 25(2)(g) provides that the Tribunal 
may order a party to a proceeding to take such action or refrain from
    such action as in the opinion of the Hearings Tribunal is required in the
    circumstances.

[13]

Second, for the reasons set out in the companion appeal, the object of
    the Act requires ongoing comparison to men. When there are insufficient men in
    the establishment, there is reference to another employer. That is how the
    proxy method works
. The matter was remitted to the
    Tribunal to specify what procedures should be used to ensure that the
    respondents who have established pay equity through the proxy method will
    continue to have access to male comparators to maintain pay equity. I would
    direct that
the parties comply with the Tribunals
    direction, to negotiate a GNCS and determine whether any maintenance
    adjustments are required, in conjunction with the procedures specified by the
    Tribunal as a result of the decision in the companion appeal.

[14]

I would dismiss the appeal and invite submissions as to costs (limited
    to 5 pages) within 15 days of the release of this decision.

M.L.
    Benotto J.A.

I
    agree David Brown J.A.

I
    agree B. Zarnett J.A.

Huscroft J.A.
    (Concurring):

[15]

I conclude that the Tribunal's decision is
    reasonable as a whole, including the order that the parties negotiate a GNCS. I
    would dismiss the appeal for the reasons set out in the companion appeal.

Released: March 09, 2021       GRS

Grant Huscroft J.A.

I agree G.R. Strathy C.J.O.


