



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Nurses Association v.
    Participating
Nursing Homes, 2021 ONCA 148

DATE: 20210309

DOCKET:
C67495 &
    C67497

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

BETWEEN

Ontario Nurses Association

Applicant

(Respondent/Appellant
    by way of cross-appeal)

and

Participating Nursing Homes

Respondents

(Appellants/Respondents
    by way of cross-appeal)

and

Service Employees International
    Union, Local 1

Respondent

(Respondent/Appellant
    by way of cross-appeal)

AND BETWEEN

Service Employees International
    Union, Local 1

Applicant

(Respondent/Appellant
    by way of cross-appeal)

and

Participating Nursing Homes

Respondents

(Appellants/Respondents
    by way of cross-appeal)

and

Ontario Nurses
    Association

Respondent

(Respondent/Appellant by way of cross-appeal)

David M. Golden and Marco P. Falco, for
    the appellants/respondents by way of cross-appeal, the Participating Nursing
    Homes

S. Zachary Green, Emily Bala and
    Carolyn L. Kay, for the appellant/respondent by way of cross-appeal, the
    Attorney General of Ontario

Paul J.J. Cavalluzzo, Adrienne Telford
    and Lara Koerner Yeo, for the respondent/appellant by way of cross-appeal, the
    Service Employees International Union, Local 1

Janet Borowy, Danielle Bisnar, and Andrea
    Sobko, for the respondent/appellant by way of cross-appeal, the 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 2168, reversing 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.:

OVERVIEW

[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.

[4]

The parties in this case dispute whether the
    proxy method is to be used in ensuring that pay equity is maintained. The
    appellants, the Participating Nursing Homes (PNH) and the Attorney General of
    Ontario (AGO), submit that the proxy method is only to be used to establish pay
    equity, not to maintain it. The respondents, the Ontario Nurses Association
    (ONA) and the Service Employees International Union, Local 1 (SEIU), disagree.
    They submit that the proxy method must also be used to maintain pay equity,
    because otherwise there would be no ongoing male comparator, which is essential
    to identify and redress systemic discrimination in compensation. In their
    cross-appeal, they submit that if the Act is not interpreted as requiring the
    proxy method to be used in maintaining pay equity, then the Act contravenes s.
    15 of the
Charter of Rights and Freedoms
.

[5]

The matter came before the Pay Equity Hearings
    Tribunal (the Tribunal) following applications by the ONA and the SEIU. The
    Tribunal did not agree that the proxy method was to be used to maintain pay
    equity and set out a formula for maintaining pay equity that did not include
    the proxy method.

[6]

The Divisional Court concluded that the Tribunals
    decision was unreasonable. It held that a proper interpretation of the Act
    requires ongoing access to male comparators  as set out in the proxy method  to
    maintain pay equity. The Divisional Court remitted the matter to the Tribunal
    to specify what procedures should be used to ensure continued access to male
    comparators.

[7]

For the reasons that follow, I conclude that
    the Tribunals decision is unreasonable, as the text, context, scheme and
    purpose of the Act make it clear that ongoing access to male comparators through
    the proxy method is required to maintain pay equity. I would dismiss the appeals
    and the cross-appeal.

BACKGROUND

The parties

[8]

The PN
H
are a group
    of employers that operate up to 143 for-profit nursing homes in Ontario.

[9]

The ONA is the bargaining agent for
    approximately 2,100 registered nurses and allied health professionals working
    at nursing homes across the province. The SEIU is the bargaining agent for
    registered practical nurses, personal support workers, health care aides, and
    dietary, housekeeping, and recreational aides working at the PNH. The SEIU and the
    ONA are referred to collectively as the Unions.

[10]

The AGO was added as an intervener by the Tribunal and also
    appeals.

[11]

The Tribunal and the Equal Pay Coalition were added as
    interveners by the Divisional Court and have made submissions before this court
    as well.

Ontarios 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 employers
    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
    employers establishment (in this case, the PNH) to a female job class at a
    proxy employers 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
    employers 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 employers establishment with a view to
    determining the adjustments necessary to achieve pay equity for the seeking
    employers 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.

The parties disagree on how to maintain pay equity

[21]

Employment in the nursing home sector is
    almost exclusively female. As a result, there are no male job classes available
    for purposes of comparison at the PNH, and they were required to use the proxy
    method in establishing pay-equity-compliant compensation practices for their
    employees. Municipal Homes were identified as a suitable proxy employer. They
    are similarly female dominated, but because they are operated by municipalities,
    there are male job classes available for comparison.

[22]

In 1994, the PNH took steps to establish pay-equity-compliant
    compensation practices for female employees using the proxy method. Following
    extensive negotiations, the Unions and the PNH reached an agreement. In
    accordance with the agreement, pay equity was established for all female job
    classes at the PNH by 2005, following adjustments to increase compensation for
    all the female job classes.

[23]

The Unions take the position that the PNH have failed to
    maintain pay-equity-compliant compensation practices since 2005. Over time, the
    Unions have observed several changes in PNH workplaces that suggest the value
    of the work performed by employees is increasing: a new legislative framework;
    new education requirements for employees; increasing acuity of nursing home
    residents; and more medical services required to meet the rising needs of
    residents. Employees at the Municipal Homes would have experienced the same
    workplace changes, increasing the value of their work. The Unions have also
    observed that wage gaps have re-emerged between PNH employees and employees at the
    Municipal Homes doing comparable work. Accordingly, it appeared to the Unions that
    the compensation of employees at the Municipal Homes had increased because of
    the ongoing access to male comparators. This prompted the ONA and the SEIU to
    bring applications to the Tribunal.

[24]

The Unions submit that since the PNH established pay equity
    using the proxy method, the
Act
requires that it be maintained using that same method because a lack of an
    ongoing connection to a male comparator will allow pay disparity to re-emerge.

[25]

The position of the PNH and the AGO is that the Tribunals maintenance
    method, which requires only a one-time comparison with a female job class in a
    proxy establishment (i.e., a deemed male comparator), is reasonable. The
    Tribunals decision is detailed below.

Charter

values
    and s. 15
Charter
rights

[26]

The Unions have asserted
    throughout that the Tribunal and the courts must consider
Charter
values as an aid to interpret the Act  an argument that was accepted by the
    Divisional Court. They rely, in part, on this courts decision in
Taylor-Baptiste v. Ontario Public Service Employees Union
, 2015 ONCA 495,
    126 O.R. (3d) 481, leave to appeal refused, [2015] S.C.C.A. No. 412. In
Taylor-Baptiste
,
    the court had the following to say about
Charter
values in the
    administrative law context, at paras. 54-57:

Their first submission is that an
    administrative tribunal can only consider
Charter

values in its decision-making if an ambiguity exists in the
    provision of its home or enabling statute at issue in a case.

Binding authority prevents the acceptance of
    the appellants submission.  Slightly more than a decade after
    deciding
Bell ExpressVu
, the Supreme Court rejected an argument similar to the appellants
    when, in
R. v. Clarke
, it stated, at para. 16:

Only in the administrative law
    context is ambiguity not the divining rod that attracts
Charter
values. Instead,
    administrative law decision-makers must act consistently with the values
    underlying the grant of discretion, including
Charter
values (
Doré
, at para.
24
). The issue in the
    administrative context therefore, is not whether the statutory language is so
    ambiguous as to engage
Charter
values,
    it is whether the exercise of discretion by the administrative decision-maker unreasonably
    limits the
Charter
protections
    in light of the legislative objective of the statutory scheme.

The appellants second submission is that
    the
Charter
values interpretive principle articulated in
Doré
only applies to instances
    where an administrative decision-maker exercises a discretionary power, such as
    crafting a remedy. They say it does not apply to the kind of adjudicative
    decision made by the Tribunal in this case  i.e. whether the respondents
    conduct violated s. 5(1) of the
Code
.

While I take the
    appellants point that in both
Doré
and
Loyola High School
the Supreme Court frequently referred to the exercise of a
    discretionary power under a home statute, in my view the decision in
Doré
, when read as a whole, prevents
    the acceptance of the appellants submission.  First, in
Doré
the Court stated that
    administrative decisions are
always
required to consider fundamental values (emphasis in
    original). Second, the context which framed the courts discussion in
Doré
was analogous to the present
    case  i.e. the determination by an administrative tribunal about whether a
    persons conduct had violated the strictures of a statutory or regulatory rule.
    [Footnotes omitted.]

[27]

The Unions further submit on their
    cross-appeal that, if the
Act
does not require maintenance using the proxy method, the
Act

contravenes s. 15 of the
Charter.

[28]

The PNH and the AGO submit that
    the Tribunal was not required to consider
Charter
values because,
    unlike in
Taylor-Baptiste
, there was no ambiguity in the statute. They
    further submit that if
Taylor-Baptiste
stands for the proposition that
    administrative actors must always consider
Charter
values when
    interpreting statutes, even in the absence of ambiguity, then
Taylor-Baptiste
was wrongly decided because it is inconsistent with Supreme Court authorities.

Tribunal decision

[29]

The Tribunal dismissed the ONAs and the SEIU's
    applications.

[30]

The Tribunal agreed that the Act imposed an obligation on
    the PNH to maintain pay-equity-compliant compensation practices, but rejected
    the submission that the proxy method should be used to fulfill that obligation.

[31]

The Tribunal found that the proxy method was
    extraordinary, and it viewed an ongoing requirement to obtain information
    from the proxy employer as a substantial practical impediment. The Tribunal concluded
    that the Act did not require the use of the proxy method for maintenance and
    added: [t]he Acts focus is on the specific compensation practices that
    determine what an employer pays its own female job classes in a given
    establishment. The Tribunal stated:

In summary, the Acts obligation to
    maintain pay equity applies regardless of the methodology of comparison used.
    Pay equity that is achieved under a proxy plan must be maintained. Generally
    speaking, maintenance requires the on-going monitoring of any changes in either
    the compensation or the value (the amalgam of skill, effort, responsibilities
    and working conditions) of female job classes and the male job classes
    (including deemed male job classes) used for comparison purposes. In the case
    of proxy plans, however, maintenance does not require the monitoring of changes
    to the value or compensation of the female job classes in the proxy
    establishment. To so require would be inconsistent with the over-riding principle
    that the Act mandates each individual employer to whom it applies to ensure
    that its own compensation practices are free from gender discrimination.
    Instead, what is required is monitoring of the compensation and value
    relationship of the non-key female job classes and the key female job class as
    compared to the compensation/value relationship (PV line) that has already been
    determined to provide for pay equity.

[32]

The Tribunal addressed and rejected the Unions s. 15
Charter
arguments.

Divisional Court decision

[33]

The Divisional Court concluded that the Tribunals decision
    was unreasonable. The court determined that while the Act does not contravene
    s. 15 of the
Charter
, the Tribunal erred in failing to consider
Charter
values when interpreting the
Act
.


[34]

The Divisional Court relied on
Taylor-Baptiste
to
    reject the Tribunals position that statutory ambiguity was required before
Charter
values could be employed to interpret the
Act
.
    The Divisional Court considered it settled law that administrative decision
    makers must balance the
Charter
values at play with the statutory
    objectives of the legislation in question.

[35]

The Divisional Court proceeded to
    conduct its own
Charter
values analysis. Applying the framework from
Doré
    v. Barreau du Québec
, 2012 SCC 12, [2012] S.C.R. 395, the Divisional Court
    held that the Tribunals decision limited s. 15 of the
Charter
,
    because it denied women in predominantly female workplaces (compared to women
    who have male comparators within their establishments) the right to maintain
    pay equity with reference to male work. It noted that [t]he fundamental
    precept of pay equity is that there should be equal pay for work of equal value
    between women and men and that [t]he touchstone of a pay equity analysis is
    the comparison to male work, as men enjoy the benefit of compensation tied to
    the value of their work as opposed to their gender.

[36]

Further, it held that the Tribunal
    failed to balance the severity of the interference with s. 15 with the
    statutory objectives of the
Act
.
    The objectives of the
Act
include to ensure such discrimination [in compensation] does not re-emerge.
    The Tribunal failed to consider the discriminatory effects of its
    interpretation on women in female-dominated workplaces. The Tribunals
    interpretation denied these women the right to correct any pay gap that has
    re-emerged since 1994. Maintaining pay equity by internal comparison of female
    job classes does nothing to ensure that the key female job class wage to which the
    other female classes are compared reflects any re-emergence of a pay equity gap
    since 1994.

[37]

The court declined to send the matter back to the Tribunal
    for reconsideration given its conclusion that the only proportionate balancing
    of the
Charter
right of equality with the statutory mandate of the
Act
, properly construed, requires the
    maintenance of pay equity in predominantly female workplaces through the proxy
    method of comparison. The matter was remitted to the Tribunal to specify the
    procedures for maintaining pay equity using the proxy method.

[38]

The Divisional Courts conclusion that the
Act

did not contravene s. 15 of
    the
Charter
was tied to its conclusion about the proper interpretation
    of the
Act
:

We have considered whether the
Act
is discriminatory on its face because there is no mechanism spelled out in the
Act
for maintaining pay equity by reference to male work
    for women in predominantly female workplaces reliant on the proxy method.
    However, we have concluded that
there is
    an interpretation of the
Act
that would render it non-discriminatory-namely
,
    that the employer must maintain a compensation practice that involves ongoing
    comparison of the key female job class to a proxy female job class.
    Accordingly, we find that the
Act
does not
    contravene the
Charter
. [Emphasis added.]

ANALYSIS

[39]

The question for this court is whether the Divisional Court
    was correct in concluding that the Tribunals decision was unreasonable. As I
    will explain, I agree with the conclusion that the Tribunals decision was
    unreasonable, although I reach that conclusion without relying on
Charter
values. As my answer to the question is yes, I need not deal with the s. 15
    issue raised on the cross-appeal.

Guiding principles

[40]

The focus of this courts inquiry is the reasonableness of
    the Tribunals decision. This involves stepping into the shoes of the lower
    court and focusing on the Tribunals decision:
Agraira v. Canada (Public
    Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R. 559, at
    paras. 45-46.

[41]

An inquiry into the reasonableness
    of an administrative tribunals decision begins with
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
,

2019 SCC 65, 441 D.L.R.
    (4th) 1
.

[42]

Post-
Vavilov,
there is a single standard of
    reasonableness. At para. 89:

[R]easonableness remains a single
    standard, and elements of a decisions context do not modulate the standard or
    the degree of scrutiny by the reviewing court. Instead, the particular context of
    a decision constrains what will be reasonable for an administrative decision
    maker to decide in a given case. This is what it means to say that
    [r]easonableness is a single standard that takes its colour from the context.
    [Citations omitted.]

[43]

A tribunals governing statute is an
    important part of
considering whether the
    tribunals decision was reasonable in light of the relevant factual and legal
    constraints that bear on it.
Vavilov
, at para. 108:

Because
    administrative decision makers receive their powers by statute, the governing
    statutory scheme is likely to be the most salient aspect of the legal context
    relevant to a particular decision. That administrative decision makers play a
    role, along with courts, in elaborating the precise content of the
    administrative schemes they administer should not be taken to mean that
    administrative decision makers are permitted to disregard or rewrite the law as
    enacted by Parliament and the provincial legislatures.

[44]

Vavilov
reaffirms the
    modern principle of statutory interpretation, which requires that the words
    of a statute must be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the
Act
,
    the object of the
Act
, and the intention of Parliament:
Vavilov
, at para.
    117.

[45]

The administrative decision must be consistent with
    principles of statutory interpretation and be compliant with the rationale and
    purview of the statutory scheme under which it is adopted:
Vavilov
, at paras.
    108, 118. As set out in
Vavilov
at para. 121:

The administrative
    decision makers task is to interpret the contested provision in a manner
    consistent with the
text, context
    and purpose
, applying its particular insight
    into the statutory scheme at issue. [Emphasis added.]

[46]

Vavilov
cautions that
    a reviewing court is not interpreting the statute
de novo
. Rather, the
    focus should be on the reasonableness of the administrative decision. In other
    words, the focus of the analysis is on why the Tribunals decision is
    unreasonable, not what this court would have decided in the Tribunals place. This
    is explained at paras. 115-116:

Matters of statutory interpretation are not
    treated uniquely and, as with other questions of law, may be evaluated on a
    reasonableness standard. Although the general approach to reasonableness review
    described above applies in such cases, we recognize that it is necessary to
    provide additional guidance to reviewing courts on this point. This is because
reviewing courts are accustomed to resolving questions of statutory
    interpretation in a context in which the issue is before them at first instance
    or on appeal, and where they are expected to perform their own independent
    analysis and come to their own conclusions
.

Reasonableness review functions differently
. Where reasonableness is the applicable standard on a question of
    statutory interpretation, the reviewing court does not undertake a
de
    novo
analysis of the question or ask itself what the correct
    decision would have been:
Ryan
, at
    para.
50
. Instead, just as it does when applying the
    reasonableness standard in reviewing questions of fact, discretion or
    policy, the court must examine the administrative decision as a whole,
    including the reasons provided by the decision maker and the outcome that was
    reached. [Emphasis added.]

[47]

With these principles in mind, I turn now to explain why
    the Tribunals interpretation of the Act is unreasonable.

The Tribunals maintenance method

[48]

The Tribunal held that [i]t is possible to maintain pay
    equity without continuing resort to the compensation practices in the proxy
    establishment. It explained in some detail how it thought that could be
    achieved:

The initial comparison and adjustment of the
    value/compensation ratio of the key female job classes to match the
    value/compensation ratio of the proxy female job classes is capable of being
    expressed as a mathematical formula or equation. The equation may describe a
    gender neutral wage line capable of being plotted on a matrix where the
    increasing value of a job results in movement along the X axis, and where the
    increasing compensation rate of a job results in movement along the Y axis. The
    complexity of the equation will depend on the extent to which the slope of the
    wage line is other than constant. If it is constant, the relationship and the
    equation may be very simply expressed as one of $/point of value.

Regardless of how the compensation/value
    equation is expressed, either of its variables may change over time, with the
    consequence that the other must also change if the same result is to be
    maintained

.

Subsequent to
    January 1, 1994, the two potential triggers engaging the obligation to maintain
    are: a change in the compensation of the key female job class; or a change in
    the value of any of the job classes in the seeking employer's establishment.
    Whenever the hourly rate for the key female job class increases without any
    increase in its value occurring, the $/point ratio will increase. Pay equity
    for the other female job classes will be maintained only if that new ratio also
    obtains for them, and their value has not changed. If the job duties and
    responsibilities of the key female job class change such that its point value
    increases, then its rate of compensation must also increase to maintain
    whatever $/point ratio is applicable at the time. The same is true for the
    other female job classes.

[49]

Thus, the Tribunals approach to
    maintenance is limited to an internal comparison between the key female job
    class and the non-key female job classes. In the Tribunals view, 
maintenance does not require the monitoring of changes to
    the value or compensation of the female job classes in the proxy establishment.
    In other words, no ongoing comparison is made with the deemed male job classes in
    the proxy workplace.

[50]

In my view, the
    Tribunals interpretation

which deprives women in establishments without male job classes access
    to an ongoing deemed male comparator

is unreasonable
    as it ignores the purpose, scheme and plain wording of the Act.

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.


[55]

The Tribunals failure to address s. 21.13 leads me to a
    loss of confidence in the outcome reached.
Vavilov
addresses this at
    para. 122:

If, however, it is
    clear that the administrative decision maker may well, had it considered a key
    element of a statutory provisions text, context or purpose, have arrived at a
    different result, its failure to consider that element would be indefensible,
    and unreasonable in the circumstances. Like other aspects of reasonableness
    review, omissions are not stand-alone grounds for judicial intervention: the
    key question is whether the omitted aspect of the analysis causes the reviewing
    court to lose confidence in the outcome reached by the decision maker.

[56]

The job-to-job and proportional value methods presume that
    there will be male job classes in the establishment that can be compared to
    female job classes. These methods are thus not suitable for female-dominated
    workplaces where there are no male job classes. Had the Tribunal relied on s.
    21.13 - which provides that comparison with the proxy job classes is the way to
    identify systemic discrimination in establishments using the proxy method - it
    may well have arrived at a different result.

[57]

Beyond the requirement for comparison at the
    identification stage
, pay equity is achieved when
    the required comparison is done, and any necessary adjustments are made:

Achievement of pay equity

5.1 (1)
    For the purposes of this Act, pay equity is achieved in an establishment when
    every female job class in the establishment has been
compared
to a job
    class or job classes under the job-to-job method of
comparison
, the
    proportional value method of

comparison
or, in the case of an
    employer to whom Part III.2 applies, the proxy method of
comparison
, and
    any adjustment to the job rate of each female class that is indicated by the
    comparison has been made. [Emphasis added.]

[58]

The proxy method was added to the Act specifically to
    provide for deemed male comparators for establishments where no male job
    classes exist. Part III.2 of the Act sets out how the comparison between the
    seeking employer and the proxy employer works and how the value/compensation
    relationship for the key female job class in the seeking employers
    establishment permits pay equity to be achieved for the rest of the female job
    classes in that establishment:

Proxy method required

21.14(1)
A seeking employer shall use the proxy method of comparison for all
    female job classes in an establishment.

Proxy method described

21.15(1) Pay equity is achieved
    for a female job class in an establishment of a seeking employer under the
    proxy method of comparison,

(a) in the case of a key female
    job class,

(i) when the class is compared
    with those female job classes in a proxy establishment whose duties and
    responsibilities are similar to those of the key female job class, and

(ii) when the job rate for the
    class bears the same relationship to the value of the work performed in the
    class as the pay equity job rates for the female job classes in the proxy
    establishment bear to the value of the work performed in those classes; and

(b) in the case of any other
    female job class,

(i) when the class has been
    compared with the key female job classes in the establishment of the seeking
    employer, and

(ii) when the job rate for the
    class bears the same relationship to the value of the work performed in the
    class as the pay equity job rates for the key female job classes bear to the
    value of the work performed in those classes.

Comparison methods

(2) The comparisons referred to
    in subsection (1) shall be carried out using the proportional value method of
    comparison,

(a)
in the case of a
    comparison under clause (1)(a), as if the female job classes in the proxy
    establishment were male job classes of the seeking employer
; and

(b)
in the case of a
    comparison under clause (1)(b), as if the key female job classes of the seeking
    employer were male job classes of the seeking employer
.

Comparison system

(3) The
    comparisons shall be carried out using a gender-neutral comparison system.
    [Emphasis added.]

[59]

As s. 21.15(2)(a) states, the female job classes in the
    proxy establishment are treated as if [they] were male job classes of the
    seeking employer for the purpose of comparison to a key female job class in
    the seeking establishment. The reason the
proxy
    female job class serves as a deemed male job class is because it has already
    achieved pay equity by way of comparison to a male job class within the proxy
    employers establishment. Similarly, once the key female job classes have
    achieved pay equity, s. 21.15(2)(b) states that they are treated
as if [they] were male job classes of the seeking
    employer for the purpose of comparison to any other female job classes within
    the seeking employers establishment.

[60]

The AGO submits that the Divisional Court disregarded the
    fact that the comparison under the proxy method happens between female job
    classes, and so there is no comparison between male and female work. I do not
    agree. While the direct comparison is between the key female job class in the
    seeking employers establishment and a deemed male comparator in the proxy establishment,
    women in the seeking employers establishment benefit from the fact that the
    deemed male comparator has direct access to a male comparator. This permits
    comparison between male and female work even if there is not a direct
    comparison, as under the proportional value or job-to-job methods.

[61]

To sum up, all three comparison methods involve a direct or
    indirect comparison between female and male job classes. As I will explain, it
    is unreasonable to interpret the Act as doing away with an ongoing deemed male
    comparator when it comes to the employers duty to maintain pay equity in
    female-dominated establishments that used the proxy method to establish pay
    equity.

T
he ongoing requirement for male
    comparators in maintenance

[62]

The Tribunals distinction between the application of Part
    III.2 to the obligation to establish pay equity and the obligation to maintain
    pay equity is not grounded in the plain language or scheme of the

Act
, which makes no such distinction between the methods to be
    used for establishing and maintaining pay equity. Nor is the distinction
    consistent with the purpose of the Act.

[63]

The Act is divided into various parts. Part I of the Act,
    entitled General, includes ss. 1-9 of the Act. Among other things, Part I
    sets out the purpose of the Act (s. 4(1)), and the employers duty to establish
    and maintain compensation practices that provide for pay equity (s. 7(1)). Both
    establishing and maintaining pay equity are directed at achieving the purposes
    of the Act, namely, to redress systemic discrimination in compensation.

[64]

Part I also explains how "pay equity is achieved in s.
    5.1(1):

5.1 (1)
For the purposes of this Act
, pay equity is
achieved
in an
    establishment when every female job class in the establishment has been compared
    to a job class or job classes under the job-to-job method of comparison, the
    proportional value method of

comparison or, in the case of an employer
    to whom Part III.2 applies, the proxy method of comparison, and any adjustment
    to the job rate of each female class that is indicated by the comparison has
    been made. [Emphasis added.]

[65]

I would make two observations about s. 5.1(1).

[66]

First, achieve in s. 5.1(1) is not synonymous with establish
    in s. 7(1). As a matter of statutory interpretation, [i]t is presumed that the
    legislature uses language carefully and consistently so that within a statute
    or other legislative instrument the same words have the same meaning and different
    words have different meanings: Ruth Sullivan,
Sullivan on the Construction
    of Statutes
, 6th ed. (Markham: LexisNexis, 2014), at 8.32.

[67]

Second, s. 5.1(1) opens with the words [f]or the purposes
    of the Act. The purposes of the Act include both establishing
and
maintaining
    pay equity. As such, the methods in s. 5.1(1) are not limited to establishing
    pay-equity-compliant compensation practices. Rather, they also apply in
    maintaining them.

[68]

Moreover, not using the proxy method to maintain
    pay-equity-compliant compensation practices would undermine the purpose of the
    Act.

[69]

The Supreme Courts decision in
Alliance
demonstrates
    the inequity that arises when compensation for female employees is not tied to
    that for males on an ongoing basis:
Quebec
    (Attorney General) v. Alliance du personnel professionnel et technique de la
    santé et des services sociaux
, 2018 SCC
    17, [2018] 1 S.C.R. 464
. In
Alliance
, the court
    considered the maintenance provisions of the Quebec legislation, which required
    that women wait five years before applying for pay equity maintenance. At para.
    38, the court identified the systemic nature of pay discrimination and how the
    impugned legislation created barriers to addressing the problem:

Although the
    scheme purports to address systemic discrimination, it in fact codifies the
    denial to women of benefits routinely enjoyed by men  namely, compensation
    tied to the value of their work. Men receive this compensation as a matter of
    course; women, under this scheme, are expected to endure five-year periods of
    pay inequity, and to receive equal compensation only where their employer
    voluntarily acts in a non-discriminatory manner, or where they can meet the
    heavy burden of proving the employer engaged in deliberate or improper conduct.
    The scheme thus places barriers along the path to equal pay for women.

[70]

So too here. The Tribunals elimination of male comparators
    for women in predominantly female job classes places barriers along the path
    to equal pay for women. I will explain.

[71]

Alliance,
and the
    Supreme Courts companion decision,
Centrale des syndicats du Québec v.
    Quebec (Attorney General)
,
2018
    SCC 18, [2018] 1 S.C.R. 522 (
CSQ
), explain that womens work is
    valued less than mens. Since the devaluation is systemic, it follows
    that it will continue to exist within the seeking employer's establishment after
    pay equity is established. Any internal adjustment to the value/compensation
    ratio in an establishment without male comparators will include systemic
    assumptions about the value of women's work and result in a smaller adjustment
    than if the work were valued in the same way that men's work is valued.

[72]

The importance of the male comparator is demonstrated by
    the fact that  in non-proxy cases  the Tribunal routinely uses the same
    method for maintaining pay equity as was used to establish pay equity in the
    first place:
BICC Phillips
(7 October, 1997) 0590-96 (P.E.H.T.);
Canadian
    Union of Public Employees v. City of Peterborough,
2015 CanLII 55324
    (P.E.H.T.);
Ottawa Board of Education
(28 May 1996) 0473-93; 0474-93;
    0485-94; 0487-94 (P.E.H.T.);
Ontario Secondary School Teachers Federation
    on behalf of the Educational Assistants Bargaining Unit v. Simcoe Muskoka
    Catholic District School Board
, 2018
    CanLII 123879 (P.E.H.T.)
.

[73]

In recognition of the potential for systemic discrimination
    to re-emerge, in job-to-job and proportional value establishments there is
    continual reference back to the male comparators rather than setting a
    value/compensation ratio for the female job classes and maintaining pay equity
    only by reference to that initial ratio. The regular reference back to
    male comparators is undertaken because women's work continues to be systemically
    undervalued. A 1994 ratio cannot account for any devaluation that has taken
    place since that date.

[74]

Women in establishments without male comparators are most
    at risk of being affected by discrimination, as noted in
CSQ
, at para. 29:

Moreover, since women
    in workplaces without male comparators may suffer more acutely from the effects
    of pay inequity precisely because of the absence of men in their workplaces,
    these categories single out for inferior treatment the group of women whose pay
    has, arguably, been most markedly impacted by their gender
.

[75]

The Tribunals maintenance method fails to provide a means
    to redress systemic discrimination on an ongoing basis for these most
    vulnerable women. The Tribunals maintenance method assumes there is no
    discrimination unless the ratio used to establish pay equity is no longer being
    maintained. Under its method, which relies on an outdated comparison, re-emerging
    systemic discrimination would not be identified and addressed.

[76]

In explaining its reasons for rejecting the proxy method  for
    maintenance, the Tribunal describes a number of features of the Act, noting
    that in the context of the Act as a whole the proxy method is extraordinary. Among
    other things, the Tribunal states that [t]he Acts focus is on the specific
    compensation practices that determine what an employer pays its own female job
    classes in a given establishment. It emphasizes what it describes as the
    over-riding principle that the Act mandates each
individual
employer
    to whom it applies to ensure that
its own
compensation practices are
    free from gender discrimination (emphasis in original).

[77]

With respect, the Tribunal lost sight of the fact that pay
    equity can be maintained internally when using the job-to-job and proportional
    value methods as a consequence of the fact that there are internal male
    comparators. The over-riding principle or purpose of the Act is not internal
    comparison but rather redressing systemic discrimination in compensation for
    work performed by employees in female job classes.

[78]

The Tribunal also made the point that the Act
    does not require wage parity, and it emphasized that not all differences in
    compensation are necessarily attributable to gender discrimination:

The Act does not require wage parity as
    between different employers. Two different employers operating the same kind of
    business in the same geographic area may have pay-equity-compliant compensation
    practices even though the female job classes performing the same or
    substantially similar duties for each of those employers do not receive similar
    compensation. In other words, the Act contemplates that the rates of pay for
    the same or similar women's work may vary depending on
the
    identity and characteristics of their employer
.



The Act recognizes
    that not all differences in compensation between comparably-valued mens and
    womens work (where the womens work is paid less) in the same establishment
    are necessarily attributable to gender discrimination.  Section 8(1) of the Act
    outlines a number of situations where such difference(s) in compensation need
    not be redressed. [Emphasis in original.]

[79]

I accept that wage parity is not the measure of whether
    there is inequity in compensation that must be redressed. Rather, the Act
    provides that pay equity is achieved by using one of the three comparison
    methods and making the required adjustments, whether or not that results in
    parity between different employers.

[80]

I also accept that s. 8 expressly permits some differences
    in compensation:

8
(1) This Act
    does not apply so as to prevent differences in compensation between a female
    job class and a male job class if the employer is able to show that the
    difference is the result of,

(a)  a formal seniority system
    that does not discriminate on the basis of gender;

(b)  a temporary employee training
    or development assignment that is equally available to male and female
    employees and that leads to career advancement for those involved in the
    program;

(c)  a merit compensation plan
    that is based on formal performance ratings and that has been brought to the
    attention of the employees and that does not discriminate on the basis of
    gender;

(d)  the personnel practice known
    as red-circling, where, based on a gender-neutral re-evaluation process, the
    value of a position has been down-graded and the compensation of the incumbent
    employee has been frozen or his or her increases in compensation have been
    curtailed until the compensation for the down-graded position is equivalent to
    or greater than the compensation payable to the incumbent; or

(e)  a skills shortage that is
    causing a temporary inflation in compensation because the employer is
    encountering difficulties in recruiting employees with the requisite skills for
    positions in the job class.

(2) After
    pay equity has been achieved in an establishment, this Act does not apply so as
    to prevent differences in compensation between a female job class and a male
    job class if the employer is able to show that the difference is the result of
    differences in bargaining strength.

[81]

This section acknowledges that systemic discrimination
    continues to exist even though there are circumstances in which it does not
    follow necessarily that differences in compensation are the result of
    discrimination.

[82]

The Tribunal admitted that there is no provision in Part
    III.2 that expressly constrains a seeking employer from requesting [the pay-equity-compliant
    rate for the proxy employers job classes] on an ongoing basis. However, it
    was concerned that it would be an onerous task for the proxy employer. In its
    view, obtaining the necessary information from the proxy employer would be a
    substantial practical impediment. In any event, the Tribunal concluded that
    the Act did not require such information sharing.

[83]

As the Tribunal recognized, the Act does not constrain a
    seeking employer from requesting information from a proxy employer on an
    ongoing basis. Indeed, s. 21.17(1) provides a means for seeking employers to
    access necessary information about the compensation practices and working
    conditions within the proxy establishment. It is not limited to the establishment"
    phase. Section 21.17(1) states that the purpose of getting such information is
    to make a comparison to a key female job class using the proxy method.

Unreasonable Decision

[84]

As
Vavilov
instructs at para. 100, before a
    reviewing court can set aside a decision on the basis that it is unreasonable,
    the court must be satisfied that there are sufficiently serious shortcomings
    in the decision such that it cannot be said to exhibit the requisite degree of
    justification, intelligibility and transparency. While the Tribunals reasons
    are transparent and intelligible, there is nothing in the Act that would
    justify eliminating a male comparator for maintaining pay equity in establishments
    where the proxy method was used to establish pay equity. In my view, the only
    reasonable interpretation of the Act is that it requires the use of the proxy
    method in maintaining pay-equity-compliant compensation practices in such establishments.

Charter
Values

[85]

My conclusion that the Tribunals decision is unreasonable rests
    on the application of the modern principle of statutory interpretation.
It is unnecessary to determine whether the Tribunal also
    erred in failing to take into account
Charter
values in interpreting
    the Act. While I leave the
Charter
values issue for another day, I
    would question the need to resort to a
Charter
values analysis in a
    situation like this one where the
Charter
value in question  equality
     is consistent with the purpose of the legislation, which is to redress
    discrimination in compensation.
Accordingly, there
    is no need to determine whether
Taylor-Baptiste
was wrongly decided on the question of
Charter
values.

DISPOSITION

[86]

I would dismiss the appeals.

[87]

I agree with the Divisional Court that the matter should be
    remitted to the Tribunal to specify what procedures should be used to ensure
    that those employees, represented by the Unions, who have established pay
    equity through the proxy method, will continue to have access to male
    comparators to maintain pay equity.

[88]

I would also dismiss the cross-appeal. It is not necessary
    to address the cross-appeal, which was initiated if this court allowed the
    appeals.

[89]

I would invite submissions as to costs (limited to 5 p
ages) 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. (Dissenting):

OVERVIEW

[90]

The legislative
    obligation in this case is clear. Section 7(1) of the
Pay Equity Act
,
    R.S.O. 1990, c. P.7, requires the parties to establish and maintain
    compensation practices that provide for pay equity in every establishment of
    the employer. But while the Act sets out several methods for establishing pay
    equity, it says nothing about how pay equity is to be maintained once it has
    been achieved. The question for the Pay Equity Tribunal was how compensation practices
    that provide for pay equity are to be maintained in workplaces where pay equity
    has been achieved by means of proxy comparison.

[91]

In order to answer this
    question, the Pay Equity Tribunal held hearings over a period of several days
    and heard not only from the parties but also the Attorney General for Ontario,
    who was granted permission to intervene in the proceedings. The Tribunal heard
    evidence from lay and expert witnesses concerning the operation of the homes
    party to this dispute; the relationship of the homes to the government;
    employment in the homes; the bargaining relationship of the workplace parties;
    and the negotiation of the parties pay equity plan in 1994, which culminated
    in the achievement of pay equity when the final pay adjustment was made in
    2005.

[92]

The Tribunal wrote a
    lengthy and detailed decision that runs to 76 single-spaced pages. The decision
    reviews the history of the legislation, the study that gave rise to the
    amendments establishing the proxy comparison system, and the governments
    various discussion papers and legislative statements. It also discusses the
    repeal of the proxy method and the decision in
Service Employees
    International Union, Local 204 v. Ontario (Attorney General)
(1997), 151
    D.L.R. (4th) 273 (Ont. Sup. Ct.), which declared the repeal to be
    unconstitutional and of no force or effect.

[93]

The Tribunal analyzed
    the positions of the parties and reviewed its caselaw. Ultimately, the Tribunal
    decided not to adopt either of the parties positions. Instead, the Tribunal
    outlined a formula for compensation practices in the parties workplaces that
    maintains pay equity by maintaining the ratio between the hourly wage and the
    point value of the relevant job. The Tribunal explained the operation of this
    formula in a series of detailed examples. Finally, the Tribunal made an order
    requiring the parties to negotiate and endeavour to agree on an amendment to
    their pay equity plans to stipulate a Gender Neutral Comparison System (GNCS)
    and to apply it to determine whether any maintenance adjustments are required.

[94]

The majority of the
    court concludes that the Tribunals decision is unreasonable. Although they
    assert that the decision cannot identify and address re-emerging systemic
    discrimination, they do not say that it fails to maintain pay equity. Instead,
    they conclude that there is only one way in which pay equity is to be
    maintained  only one reasonable interpretation of the Act: if pay equity was
    established using the proxy comparison method set out in the Act, it must be
    maintained using the proxy comparison method. The Tribunals decision is
    unreasonable, the majority concludes, because it does not adopt this
    interpretation.

[95]

I disagree.

[96]

The Tribunals decision
    is thorough and cogent and makes sense of an extremely complicated legislative
    scheme. The decision reflects the Tribunals considerable expertise, not only
    in pay equity but also in the diverse labour relations contexts in which pay
    equity disputes arise  unionized and non-unionized workplaces, and workplaces
    where binding interest arbitration replaces the right to strike. It is entitled
    to deference from this court. I see no basis to conclude that it is
    unreasonable.

[97]

I would allow the
    appeal for the reasons that follow. I would not decide the cross-appeal without
    additional submissions from the parties.

DISCUSSION

The
    nature and purpose of reasonableness review

[98]

At the outset, it is
    important to review the nature and purpose of reasonableness review and to
    consider the changes wrought by the majority decision of the Supreme Court in
Canada
    (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R.
    (4th) 1.

[99]

Reasonableness review
    differs fundamentally from correctness review. Correctness review assumes a
    binary: decisions are either right or wrong, and it is the courts task to
    ensure that wrong decisions are corrected, whether or not they appear to be
    reasonable or were made reasonably. In contrast, reasonableness review usually
    assumes a range of reasonable decisions, and the courts task is to ensure that
    a particular decision is transparent, intelligible, and justified. Correctness
    review premises
de novo
review by the court, whereas reasonableness
    review involves scrutinizing the reasons for an administrative decision to see
    whether they justify that decision.

[100]

The key point is this:
    reasonableness is an inherently deferential standard of review. Where the
    reasonableness standard of review applies, courts are required to defer to and
    uphold decisions with which they may not agree, provided only that those
    decisions are reasonable. Correctness review involves no such compromise.

[101]

Vavilov
does not alter the distinction between
    correctness and reasonableness review. The key change effected by
Vavilov
is the elimination of the contextual approach to selecting which standard of
    review applies. Henceforth, it is presumed that reasonableness review applies
    to the decisions of administrative decision makers. This presumption may be
    rebutted if the legislature has prescribed the relevant standard of review, as
    it may, for example, by establishing a right of appeal, in which case
    correctness review must be applied.

[102]

The presumption that
    reasonableness review applies may also be rebutted if the rule of law requires
    that correctness review be applied. Specifically, the presumption is rebutted
    for constitutional questions, questions of law that are of central importance
    to the legal system as a whole, and questions concerning the jurisdictional
    boundaries between two or more administrative bodies  questions for which the
    rule of law requires consistency and a final, determinate answer. These
    categories are not to be understood as closed, but nor are they to be expanded
    beyond their purpose: preventing the rule of law from being undermined and
    supporting the proper functioning of the justice system.

[103]

Much could be said
    about this, but for the purposes of this appeal there is no need to consider
    the requirements of either the rule of law or the proper functioning of the
    justice system. It is plain that the decisions of the Pay Equity Tribunal are
    subject to reasonableness review. The question is: how does reasonableness
    review operate?

[104]

Vavilov
provides considerable guidance in this
    regard, but the essential nature of reasonableness review has not changed.
    Reasonableness review was, and remains, a deferential form of review. It is a
    form of review that respects the distinct role of administrative decision
    makers; involves a minimum of judicial interference; and requires a posture
    of restraint by the reviewing court:
Vavilov
, at paras. 75 and 24. As
    the Court reiterates, [r]easonableness review is an approach meant to ensure
    that courts intervene in administrative matters
only where it is truly
    necessary to do so in order to safeguard the legality, rationality and fairness
    of the administrative process
,
 Vavilov
at para. 13 (emphasis
    added).

[105]

Vavilov
confirms that the reasonableness of a
    particular decision is to be assessed having regard to the reasons proffered
    for that decision. The court is not to ask what decision it would have made and
    then compare the decision under review against the benchmark it has
    established. Nor is the court to identify the range of possible decisions that
    could have been made in order to see whether the decision under review falls
    within it. The question for the court is whether the decision under review is
    transparent, intelligible, and justified.

[106]

The underlying tension
    in
Vavilov
concerns the intensity of the reasonableness review the Court
    endorses. The Court reiterates that [r]easonableness is a single standard that
    takes its colour from the context, at para. 89, suggesting differing intensity
    of review, if not different standards, in different contexts:  see David
    Mullan, Reasonableness Review Post-
Vavilov
: An Encomium for
    Correctness, or Deference as Usual? (Paper delivered at the What Difference
    will
Vavilov
Make? Views from Workplace Law and Beyond Webinar, October
    16, 2020) at pp. 16-17. Be that as it may, reasonableness remains a deferential
    form of review, substantially different from correctness, as the Courts
    emphasis on concepts such as respect and restraint demonstrates. At the
    same time, however, the Court describes reasonableness as a robust form of
    review:
Vavilov
, at para. 13.

[107]

To the extent that the
    adjective robust simply emphasizes that reasonableness review is not to
    function as a rubber stamp, no problem arises. But it must be acknowledged that
    there are statements in the majority decision that appear to be in tension with
    the concept of deference. For example, the Court speaks of constraints on
    administrative decision makers and, significantly, states that there will
    sometimes be only one reasonable interpretation of a statutory provision:
Vavilov
,
    at paras. 90 and 110. This seems unobjectionable in theory; the legislature is
    usually able to make its intention clear. But how is a court to conclude there
    is but one reasonable interpretation if it is not to perform
de novo
analysis or determine the correct interpretation of the legislation itself,
    which the Court specifically precludes? The Court acknowledges the problem but
    states simply: it may sometimes become clear in the course of reviewing a
    decision that the interplay of text, context and purpose leaves room for a
    single reasonable interpretation:
Vavilov
, at para. 124.

[108]

This statement must be
    read in the context of the Courts endorsement not only of deference, but also
    of the continued importance of an administrative decision makers expertise.
    Although expertise is no longer a relevant consideration in determining which
    standard of review applies, it remains important to the manner in which
    reasonableness review is conducted. Specialized knowledge matters. As the Court
    emphasized at para. 93:

In conducting
    reasonableness review, judges should be attentive to the application by
    decision makers of specialized knowledge, as demonstrated by their reasons.
    Respectful attention to a decision makers demonstrated expertise may reveal to
    a reviewing court that an outcome that might be puzzling or counterintuitive on
    its face nevertheless accords with the purposes and practical realities of the
    relevant administrative regime and represents a reasonable approach given the
    consequences and the operational impact of the decision.

This is an important admonition that in my view should be heeded in this
    case.

[109]

Courts lack the
    expertise that specialist administrative decision makers have; they simply do
    not know what they do not know about the way in which a complex regulatory
    scheme such as pay equity operates. Of course, this is not a reason for a
    reviewing court to conclude that any and all decisions from  specialized
    tribunals are reasonable; it is, however, a reason for the court to exercise
    considerable caution before concluding that a particular decision is
    unreasonable, especially if in making that decision the tribunal is acting
    within the sphere of its specialized knowledge, carrying out its mandate to
    create solutions to problems.

The
    Pay Equity Tribunals decision

[110]

As
Vavilov
instructs, the courts focus on judicial review must be on the Tribunals
    reasons. The court needs to understand how the Tribunal reached its decision
    before it can determine whether that decision is reasonable.

[111]

After noting the
    absence of a definition of maintenance in the Act, the Tribunal reviewed all
    of the provisions and regulations in which the term appears and found that none
    of them provided any indication of how pay equity was to be maintained. Thus,
    the Tribunal stated that the scope of [the obligation to maintain pay equity]
    must be ascertained from a consideration of the Act as a whole, and that the
    plain meaning of the word maintain suggests that the obligation is to
    continue the compensation/value relationship that is established when a female
    job becomes pay equity compliant. There is nothing unreasonable in any of
    this.

[112]

The Tribunal reviewed
    its caselaw and adopted the approach taken in previous cases: maintenance is
    the means by which an employer ensures that compensation practices are kept
    up-to-date and remain consistent with pay equity principles. The Tribunal
    distinguished maintenance of pay equity from the sorts of change in
    circumstances that require a formal review or reposting of a pay equity plan 
    for example, changes in the operational structure of an establishment, the
    unionization of an employer, or the merger of employers. The Tribunal found
    that the changes alleged in this case  changes to job responsibilities or
    educational requirement of the job classes and changes in the acuity and
    demands of the patients in the homes  were the sorts of changes that had to be
    addressed in the pay equity maintenance process.

[113]

The problem was that
    the way in which the parties developed their pay equity plan in this case
    rendered it difficult to measure the value of work performed on an ongoing
    basis. As outlined below, the parties did not agree to a GNCS, nor did they
    evaluate any job classes. Thus, even assuming that their pay equity plan was
    accurate when the agreement was made, the Tribunal could not be certain that it
    remained so.

[114]

The Tribunal considered
    and rejected the parties focus on compensation changes as the only variable
    with which the maintenance obligation is concerned because it failed to address
    changes in what the Tribunal identified as the key variable: the
value
of the job classes. The Tribunal rejected the employers argument that
    across-the-board wage increases could maintain pay equity; this was true only
    if the value of the job classes in the seeking establishment remained
    unchanged. Similarly, the Tribunal rejected the unions argument that wage
    differences between employees in Municipal Homes versus the homes in this case
    meant that pay equity was not being maintained; the
Act
requires an
    assessment not simply of whether compensation has changed, but whether the
    relative value of job classes compared to their compensation has changed.

[115]

The Tribunal found that
    wage rates for the same job class varied from one home to another and that
    implementation of pay equity adjustments did not lead to uniform pay rates
    across the homes. Further, although a number of changes occurred since the pay
    equity plan was executed, those changes have not been addressed in the interest
    arbitration process. A pay gap between wages and benefits in the homes and in
    the Municipal Homes developed and increased. That being said, the Tribunal
    emphasized that the obligation to maintain pay equity was more than simply
    accounting for changes in compensation and had to be capable of application to all
    public sector workplaces  both union and non-union, and regardless of the
    operation of interest arbitration.

[116]

The Tribunal reiterated
    the importance of monitoring job duties and responsibilities to ensure that
    comparator job classes remain appropriate, while noting the difficulty in doing
    so: although compensation rates are in the public domain, information about
    changes in job duties and responsibilities is not. The proxy employers
    obligation to maintain pay equity in its own establishment makes it difficult
    to determine the pay equity compliant rate for its job classes at any given
    time. The Tribunal considered that there was a substantial practical
    impediment to obtaining information to enable a proxy plan to be updated or
    maintained to reflect changes in the value or compensation rates for the proxy
    female job classes. But this was not what the Act requires in any event: the
    focus of the Act is on the compensation practices specific to individual
    establishments.

[117]

The Tribunal found that
    pay equity can be maintained for both non-key female job classes and the key
    female job class without continuing resort to the compensation practices in the
    proxy establishment. Pay equity is to be maintained by on-going monitoring of
    changes to either the compensation or the value of female and male job classes
    (including deemed male job classes). The Tribunal sets out a detailed and
    specific methodology and illustrates its operation with several specific
    examples.

[118]

Finally, the Tribunal
    concluded that changes in the clientele and the duties performed in the homes
    may impact the value of the job classes, but the pay equity consequences could
    be determined only by evaluating the job information using a GNCS, which the
    parties plans lacked. Accordingly, the Tribunal ordered the parties to
    negotiate and endeavour to agree on an amendment to their pay equity plans to
    stipulate a GNCS and to apply it to determine whether any maintenance
    adjustments are required.

The
    Tribunals decision is reasonable

[119]

I repeat what I said at
    the outset: the Tribunals decision is thorough and cogent. It makes sense of
    an extremely complicated legislative scheme, a scheme with which the courts
    have virtually no familiarity. The Tribunals decision reflects its
    considerable expertise, not only in pay equity but also in the diverse labour
    relations contexts in which pay equity disputes arise  unionized and
    non-unionized workplaces, and workplaces where binding interest arbitration
    replaces the right to strike. I see no basis to conclude that the decision is
    unreasonable.

[120]

There is no doubt that
    the unions prefer proxy methodology because they suppose that it will yield
    greater monetary benefits. But as the Tribunal was at pains to point out, the
    pay equity obligation established by the Act is establishment-specific. The Act
    is not designed to deliver wage parity; it is designed to require pay equity
    compliant compensation practices in each establishment covered by the Act. This
    may well mean different pay rates for female job classes across employers 
    differences that may be the result of unionization and the nature of bargaining
    unit configurations in different workplaces.

[121]

The importance of
    changes in the
value
of work performed is key to the Tribunals
    decision. And this case was difficult, among other reasons, because the parties
    did not follow the prescribed procedure in making their pay equity agreement.
    They did not agree to a GNCS. They did not evaluate any job classes on the
    basis of the skill, effort, responsibility and working conditions in the
    seeking or proxy establishments. Instead, they simply negotiated a pay equity
    settlement based on the assumptions that the employees possessed similar skills
    whether they worked in a Municipal or private home; they performed the same
    duties under the same conditions; and that their work was of the same value to
    Municipal and private homes. Their negotiated settlement was deemed approved
    despite technical non-compliance with the Act and its validity was not
    challenged in these proceedings. But in the absence of a GNCS the Tribunal
    could not be sure that the assumptions on which the Proxy Plans were based were
    accurate when the plans were developed or that they remained accurate in any
    event.

[122]

The majority concludes
    not only that the Tribunals decision is unreasonable, but also that there is
    only one reasonable interpretation of the statutory requirement to maintain pay
    equity: in an establishment in which pay equity was achieved using the proxy
    method, it must be maintained by using the proxy method. According to the
    majority reasons, the Tribunals decision ignores the purpose, scheme and
    plain wording of the Act.

[123]

With respect, I
    disagree.

[124]

The Tribunal cannot be
    said to have ignored anything, let alone the purpose, scheme and plain wording
    of the Act. It fully understood the problem before it. As the Tribunal stated,
    the purpose of the Act is to redress systemic gender discrimination in
    compensation. The proxy method was established precisely because the
    job-to-job comparison method could not achieve this purpose. As for the plain
    wording of the Act, the difficulty presented by this case is the
absence
of plain wording: although the Act mandates the maintenance of pay equity, it
    says nothing about
how
it is to be maintained.

[125]

It may well seem
    counterintuitive that pay equity achieved in one manner should not be
    maintained in the same manner. But the Tribunal considered that approach and
    explained why it was neither practical nor necessary to use the proxy method to
    maintain pay equity. Differences arising in the compensation/value relationship
    in a proxy employer may be attributable to bargaining strength rather than
    systemic discrimination. They may also be attributable to other
    non-discriminatory reasons, even if the employees are performing work of the
    same value. This is a problem because the
Pay Equity Act
is not intended
    to redress differences in pay across employers
per se
; it is intended to
    address only those differences that are the result of systemic discrimination.
    Nor is the Act intended to establish industry or sectoral wage standards.

[126]

The majority
    acknowledges this point but does not follow through on the implications.
    Regardless of how pay equity is established, the obligation to establish and
    maintain pay equity falls on individual employers. This is the sense in which
    the Tribunal refers to the proxy methodology as extraordinary: although the
    obligations to establish and maintain pay equity apply to individual employers
    and their establishments, where the proxy methodology applies pay equity is
    established having regard to the practices of a different, unrelated employer.

[127]

The Tribunal
    specifically considers and rejects the interpretation the majority concludes is
    the only reasonable one available. Although the majority sets out the relevant
    passages from the decision in which the Tribunal outlines and explains its
    formula for maintaining pay equity, they do not engage with the Tribunals
    reasons. Significantly, the majority does not say that the Tribunals
    methodology would not maintain pay equity at the Homes.

[128]

The majority criticizes
    the Tribunal for failing to address s. 21.13, which it says leads to a loss of
    confidence in the Tribunals decision. But the Tribunal devotes numerous pages
    to explaining the operation of the proxy system and its purpose in redressing
    systemic discrimination. There is no basis to suggest that the Tribunal
    misunderstood its mandate and no basis to lose confidence in its decision. The
    Tribunals decision is sensitive to the purpose and scheme of the Act throughout.

[129]

The majoritys argument
    is not advanced by the general wording of s. 5.1(1), and in particular
    introductory words [f]or purposes of this Act, nor by purported distinctions
    between the terms achieve, establish, and maintain. It is simply asserted
    that the Tribunals method would not identify and address re-emerging systemic
    discrimination.

[130]

The premise underlying
    the majority reasons is that the Tribunal has eliminated male comparators for
    women in predominately female job classes.  The problem with this premise is
    that the proxy method operates without comparison to male job classes in the
    proxy establishment. The comparison is with the key female job class in the
    proxy employer, in which pay equity has been achieved. That class is treated as
    though it is a male job class in the seeking employers establishment, and then
    used to establish pay equity in the various female job classes. There is no
    obvious reason why maintenance of the compensation/value ratio established by
    the proxy comparison would not maintain pay equity in the relevant
    establishment, regardless of the absence of male comparators.

[131]

At the end of the day,
    the Tribunals decision identifies the relevant issues and engages with the
    legislation and the arguments of the parties in a manner that is sensitive to
    the purpose of the Act and the proxy system in particular. The Tribunal was
    faced with a particular problem in this case: the parties negotiated a
    settlement of their pay equity issues in 1995 rather than following the proxy
    methodology prescribed in the Act. In the absence of a GNCS, the consequences
    of changes since the pay equity agreement was negotiated could not be
    ascertained. Accordingly, the Tribunal ordered the parties to negotiate and
    endeavour to agree on an amendment to their pay equity agreement to stipulate a
    GNCS and apply it to determine whether any maintenance adjustments were
    necessary. There is nothing unreasonable in this.

[132]

The Tribunals reasons
    are comprehensive. The Tribunal reviews the positions of the parties and
    explains why it rejects them. It explains and demonstrates the operation of its
    formula for maintaining pay equity, which uses a value/compensation ratio for
    the key female job classes to maintain pay equity in all of the female job
    classes in the seeking employer. There is no failure of internal rationality
    nor are the Tribunals reasons marred by any logical fallacies. In short, the
    decision is reasonable and should be upheld. With respect, the majority reasons
    lose sight of the purpose of reasonableness review and ultimately collapse into
    correctness review. It is significant that the word deference is nowhere to
    be found in the majority reasons.

[133]

Care must be taken in
    deciding that there is but one reasonable interpretation of a complicated
    regulatory regime such as pay equity. There may well be only one reasonable
    interpretation of rule-like language in a statute  precise and narrow
    language, as the court put it in
Vavilov
at para. 110 ­ but there is no
    such language at issue in this case. I do not accept that the Tribunal has
    profoundly misunderstood and undermined its mandate, as the majority reasons
    suggest. The Tribunals decision accords with the longstanding understanding at
    the Pay Equity Commission, which was set out in
A Guide to Interpreting
    Ontarios Pay Equity Act
, as well as the Ministry of Labours 1992
    Discussion Paper on Pay Equity: Implementing Proxy Comparisons, both of which
    contemplated onetime-only comparisons with the proxy employer in order to
    establish pay equity. These are not binding sources of law, of course, but they
    lend further support to the conclusion that the Tribunals decision is
    reasonable.

[134]

I conclude that the
    Tribunals decision is reasonable.

The
Charter
arguments

[135]

This court granted
    leave to appeal from the decision of the Divisional Court and constituted a
    five-member panel to hear this appeal because this courts decision in
Taylor-Baptiste
    v. Ontario Public Service Employees Union
, 2015 ONCA 495, 126 O.R. (3d)
    481, was challenged. The respondents cross-appealed, arguing that if the
    Tribunals decision was not unreasonable, then the Act violated the
Charter
.

[136]

The majority concludes
    that it is unnecessary to address the
Charter
values or the
Charter
violation arguments in light of its decision that the Tribunals decision is
    unreasonable. My conclusion that the Tribunals decision was not unreasonable
    renders it necessary for me to address the
Charter
arguments, and I do
    so below.

[137]

I conclude that
Charter
values are relevant to statutory interpretation only where genuine ambiguity
    exists. To the extent that
Taylor-Baptiste
says otherwise, it should not
    be followed.

[138]

I would not decide
    whether the legislation violates the
Charter
without further submissions
    from the parties.

The
    Divisional Court erred in applying
Charter
values

[139]

The Tribunal considered
    and rejected the argument that
Charter
values applied so as to alter its
    interpretation of the Act. The Tribunal found that resort to
Charter
values as an interpretive aid is warranted only in the case of ambiguity and
    that the
Pay Equity Act
was not ambiguous.

[140]

With respect, the
    Divisional Court erred in concluding that the Tribunal was required to consider
Charter
values in interpreting the relevant provisions of the
Pay
    Equity Act
. There was no basis to invoke
Charter
values, still less
    to conclude that the Tribunals decision was at odds with the
Charter
value of equality in any event.

[141]

The Divisional Court followed
    this courts decision in
Taylor-Baptiste
. In that case, the court
    acknowledged that the interpretive principle established in
Doré v. Barreau
    du Québec,
2012 SCC 12, [2012] 1 S.C.R. 395, applies in the context of the
    exercise of discretionary authority by administrative decision makers but
    asserted that, read as a whole,
Doré
requires
Charter
values to
    be considered in determining whether a persons conduct violated a statutory or
    regulatory rule. I set out the relevant passages from the courts decision for
    convenience, at paras. 54-58:

Their first
    submission is that an administrative tribunal can only consider
Charter

values in its decision-making if an
    ambiguity exists in the provision of its home or enabling statute at issue in a
    case.

Binding authority
    prevents the acceptance of the appellants submission. Slightly more than a
    decade after deciding
Bell ExpressVu
, the Supreme Court rejected an argument similar to the appellants
    when, in
R. v. Clarke
,
    it stated, at para. 16:

Only in the administrative
    law context is ambiguity not the divining rod that attracts
Charter
values. Instead,
    administrative law decision-makers must act consistently with the values
    underlying the grant of discretion, including
Charter
values (
Doré
, at para. 24). The issue in the administrative
    context therefore, is not whether the statutory language is so ambiguous as to
    engage
Charter
values,
    it is whether the exercise of discretion by the administrative decision-maker
    unreasonably limits the
Charter
protections in light of the legislative objective of the statutory
    scheme.

The appellants
    second submission is that the
Charter
values interpretive principle articulated in
Doré
only
    applies to instances where an administrative decision-maker exercises a
    discretionary power, such as crafting a remedy. They say it does not apply to
    the kind of adjudicative decision made by the Tribunal in this case  i.e.
    whether the respondents conduct violated s. 5(1) of the
Code
.

While I take the
    appellants point that in both
Doré
and
Loyola High School
the
    Supreme Court frequently referred to the exercise of a discretionary power
    under a home statute, in my view the decision in
Doré
, when read as a
    whole, prevents the acceptance of the appellants submission. First, in
Doré
the Court stated that administrative decisions are
always
required to
    consider fundamental values (emphasis in original). Second, the context
    which framed the courts discussion in
Doré
was analogous to the present
    case  i.e. the determination by an administrative tribunal about whether a
    persons conduct had violated the strictures of a statutory or regulatory rule.
    [Footnotes omitted.]

[142]

With respect, these
    passages misstate the law. The limited role of
Charter
values in
    interpreting legislation was outlined by the Supreme Court in
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559. In that case,
    Iacobucci J., writing for the Court, stated at para. 62:

Statutory
    enactments embody legislative will. They supplement, modify or supersede the
    common law. More pointedly, when a statute comes into play during judicial
    proceedings, the courts (absent any challenge on constitutional grounds) are charged
    with interpreting and applying it in accordance with the sovereign intent of
    the legislator.  In this regard, although it is sometimes suggested that
    it is appropriate for courts to prefer interpretations that tend to promote
    those [
Charter
] principles and values over interpretations that
    do not (Sullivan,
supra
, at p. 325), it must be stressed that, to the
    extent this Court has recognized a 
Charter
values interpretive principle, such principle can
only
receive
    application in circumstances of genuine ambiguity, i.e., where a statutory
    provision is subject to differing, but equally plausible, interpretations.
    [Emphasis in original]

[143]

In short,
Charter
values are relevant only to the interpretation of legislation that is genuinely
    ambiguous. The same rule applies for administrative decision makers as for
    courts:
Wilson v. British Columbia (Superintendent of Motor Vehicles)
,
    2015 SCC 47, [2015] 3 S.C.R. 300.

[144]

This approach is hardly
    surprising. Statutory interpretation is concerned with identifying and giving
    effect to the intention of the legislature. The
Charter
does not change
    this. If legislation is in some way inconsistent with the
Charter
it is
    of no force or effect to the extent of the inconsistency, but before that
    conclusion is reached the legislation may be defended on the basis that it
    establishes a reasonable limit on the
Charter
right at stake. It is no
    part of the interpreters task to preclude a finding of inconsistency with the
Charter
,
    or the attendant consequences, by interpreting legislation so as to avoid that
    inconsistency. The exception is for legislation that is ambiguous, and the
    ambiguity must be
genuine
. Iacobucci J. describes genuine ambiguity as
    arising when a statutory provision is subject to differing, but equally
plausible
,
    interpretations (emphasis added):
Bell ExpressVu
at para. 62.
Charter
values are not to be used to create ambiguity where none exists:
R. v.
    Clarke
, 2014 SCC 28, [2014] 1 S.C.R. 612, at para. 1.

[145]

The narrowness of the
    concept of ambiguity must be emphasized, for ambiguity is a concept that is
    often misunderstood. Genuine ambiguity in a statute is rare; it arises only
    where the legislature has failed to specify between two  rarely more 
    meanings that are semantically possible. Ordinarily, ambiguity can be resolved
    using the tools of statutory interpretation; read in context, the legislatures
    intended meaning will usually be the only plausible meaning, and hence the
    meaning that must be adopted. In those rare circumstances in which the
    intention of the legislature cannot be inferred it is sensible to adopt the
    interpretation that conforms to
Charter
values rather than the one that
    does not: the legislature could be presumed to have intended to adopt the
    plausible interpretation that is consistent with
Charter
values.

[146]

Ambiguity is often
    confused with vagueness, but the terms are not interchangeable. The various
    forms of indeterminacy and helpful academic authorities are discussed by Miller
    J.A. in
Pong Marketing and Promotions Inc. v. Ontario Media Development
    Corporation
, 2018 ONCA 555, 142 O.R. (3d) 542, at paras. 44-48. Unlike
    ambiguity, vagueness is anything but rare; indeed, vagueness is ubiquitous in
    many fields of regulation governed by standards rather than rules. Vaguely
    worded legislation has a core of determinate or clear meaning, but a penumbra
    that may be quite large; its application is

to this extent
underdetermined
.
    Legislative standards are often underdetermined, but this is usually resolved
    by caselaw that develops meaning of the vague standard. The duty to bargain in
    good faith is a well-known concept in labour relations law that is vague, not
    ambiguous; its meaning is fleshed out in the caselaw of the Labour Relations
    Board, the expert body charged with responsibility for interpreting and
    applying, and so developing, the duty.

[147]

The essential purpose
    of statutory interpretation was not altered by passage of the
Charter
.
    Administrative decision makers and courts must determine and give effect to the
    intention of the legislature. They are neither mandated nor permitted to
    disregard the intention of the legislature in order to give effect to
Charter
values. Indeed, the
Charter
does not require the court to interpret
    legislation in a manner consistent with the
rights
it specifically
    protects.

[148]

In this regard, the
Charter
differs from the
New Zealand Bill of Rights
and the
UK Human Rights
    Act
, both of which require courts to interpret legislation in a manner
    consistent with the rights they protect. But the difference between the
Charter
and these rights instruments is significant: only the
Charter
authorizes
    courts to refuse to give effect to legislation that is inconsistent with the
    protected rights. The requirement of rights-consistent interpretation is not
    part of the Canadian approach to statutory interpretation because it is
    necessary to give effect to both the intention of the legislature and the
    supremacy of the Constitution. Put another way: the consequences of
    inconsistency with the
Charter
are not to be avoided by a strategy of
    adopting rights-consistent interpretations regardless of the legislatures
    intentions.

[149]

Bell ExpressVu
is well-established authority that has
    been upheld consistently: see
R. v. Rodgers
, 2006 SCC 15, [2006] 1
    S.C.R. 554,
Clarke
, and
Wilson
.

It was relied on by this
    court in
Ontario Medical Association v. Ontario (Information and Privacy
    Commissioner)
, 2018 ONCA 673, 427 D.L.R. (4th) 67, at para. 20, and recent
    decisions of this court including
Gehl v. Canada (Attorney General)
,
    2017 ONCA 319, 138 O.R. (3d) 52;
E.T. v. Hamilton-Wentworth District School
    Board
, 2017 ONCA 893, 140 O.R. (3d) 11; and
McKitty v. Hayani
, 2019
    ONCA 805, 439 D.L.R. (4th) 504 all contemplate a limited role for
Charter
values and a limited conception of them.

[150]

To the extent that
Taylor-Baptiste
suggests that
Charter
values have a role to play in statutory
    interpretation in the absence of ambiguity, it is inconsistent with this authority
    and should not be followed.

[151]

The interpretation of
    legislation  even vaguely-worded legislation  does not constitute an exercise
    of discretionary decision-making authority to which
Charter
values
    apply. Although vagueness connotes a range of decisions that may be made, that
    range is always understood in the context of the intention of the legislature.
    The interpretive exercise is different in kind from the exercise of authority
    to make a discretionary decision or to exercise discretionary remedial authority.

[152]

I would add this: the
    application of
Charter
values is often problematic because of the
    failure to appreciate the difference between concepts such as rights and
    values. The terms are often used interchangeably but they are not
    interchangeable. The
Charter
is an exhaustive statement of the rights
    and freedoms it protects. In contrast, there is neither a list of
Charter
values nor a canonical formulation of them:
McKitty
at para. 95, per
    Miller J.A. Such values as have been recognized  things such as dignity;
    privacy; autonomy; and fairness  are general and abstract concepts. Although
    they trade on the
Charter
adjective, they are not
Charter

rights
.
    They are, in general,
reasons for Charter
rights  reasons that help
    explain why certain rights were accorded constitutional protection.

[153]

The underlying reasons
    for protecting rights are invariably broader than the rights themselves.
    Consider the concept of dignity. People have rights, we might say, because they
    are possessed of inherent human dignity. But the claims of morality are not
    coextensive with the requirements of legality; not all moral claims find
    expression in constitutionally protected legal rights. Thus, although the
    decision to extend constitutional protection to particular rights arises out of
    respect for human dignity, human dignity is not a freestanding right or freedom
    under the
Charter
. It is not justiciable
per se
. Care must be
    taken in identifying and applying
Charter
values, lest they supplant the
    rights from which they are inferred.

[154]

Equality seems to be an
    uncontroversial
Charter
value; it appears to be identical to the
Charter
right. But what work is the concept of equality doing when it is invoked as a
    value as opposed to a right? The
Charter
value of equality is
    necessarily broader than the
Charter
right to equality  a right that is
    limited not only by the text of s. 15 but also by decisions of the court
    emphasizing the negative purpose of the provision in preventing discrimination
    on enumerated and analogous grounds. And of course, s. 15 is, like all
Charter
rights, subject to such reasonable limits as may be imposed in a free and
    democratic society, pursuant to s. 1.

[155]

The Divisional Court
    demonstrates the problem of invoking
Charter
values as interpretive
    imperatives by invoking equality to overturn the interpretation of human
    rights legislation by a specialized human rights tribunal whose decision was
    entitled to deference. If the Act is considered problematic on equality grounds
    because of the way in which it requires the maintenance of pay equity, the
    constitutionality of the Act may be challenged. That challenge should not be
    preempted by invoking the
Charter
value of equality to alter the proper
    operation of the Act.

[156]

In summary, there is no
    ambiguity in the relevant
Pay Equity Act
provisions and hence it was
    wrong for the Divisional Court to invoke
Charter
values in interpreting
    the Act so as to override the Tribunals decision.
Taylor-Baptiste
should not be followed. The Tribunals decision is reasonable and should be
    upheld.

The
    cross-appeal

[157]

Since the hearing of
    this case, the Supreme Court released its decision in
Fraser v. Canada
    (Attorney General),
2020 SCC 28, 450 D.L.R. (4th) 1. I would not decide the
    cross-appeal without inviting submissions from the parties concerning the
    effect of this case.

Released: March 09, 2021       GRS

Grant
    Huscroft J.A.

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


