On April 30, 2019, women who work in female-dominated workplaces won a significant and historic Charter equality rights victory in an appeal to the Divisional Court. In this case, women working in nursing homes, including nurses, personal support workers ("PSWs"), health care aids, and housekeeping staff, now have the right to fully maintain pay equity in a manner similar to women in other workplaces - by reference to a male comparator.
In 2016, in ONA and SEIU v Participating Nursing Homes, the Pay Equity Hearings Tribunal issued a decision against the nurses, PSWs, health care aids, housekeeping staff and other women working in nursing homes. The Tribunal denied the unions' claim for maintenance using the proxy comparison method. In a decision released April 30, 2019 by the Ontario Divisional Court, the Court held that the Pay Equity Hearings Tribunal’s 2016 decision unreasonably limited women’s Charter equality protections.
The proxy comparison method under the Pay Equity Act applies to the public sector and allows female jobs in predominately female workplaces to compare compensation to similar jobs in another establishment where there are male comparators. At the Tribunal level, it held that pay equity maintenance in female-dominated workplaces did not require comparison to a male comparator. The Unions appealed this decision.
The Divisional Court emphasized that the Pay Equity Act is human rights legislation. The Act’s fundamental purpose is to ensure that there should be equal pay for work of equal value between women and men. The Act expressly seeks to redress systemic gender discrimination in the way women are compensated in the workplace. The Court drew upon the key elements of the Supreme Court of Canada’s 2018 pay equity decisions, which affirmed that the touchstone of the 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. The Divisional Court found that the Tribunal erred in determining that a distinction based upon a denial of the right to maintain pay equity with deemed male comparators was a distinction based upon the ‘locus of employment’ and not gender.
The Divisional Court stated that the way the Participating Homes sought to maintain pay equity was to leave women without reference to an ongoing male comparator. Such an interpretation of the Act violated the women’s Charter rights. The Court did not strike down a provision in the Pay Equity Act as unconstitutional, rather it applied a statutory interpretation where the Pay Equity Act must be interpreted in a manner consistent with Charter values. The Court stated that the right balance in the Act’s interpretation is to give full effect to the Charter protections at stake in light of the the statute’s mandate and objective. The Court continued that the Tribunal had failed to explain why the proxy method, which was considered so essential to achieve pay equity in female-dominated workplaces, is not essential to maintain pay equity.
As the Divisional Court stated, the elderly are care for in nursing homes and homes for the aged. Employment in the sector is almost exclusively female. Because the workplaces were almost exclusively female, access to pay equity was originally limited and only accessible with the creation of the proxy pay equity comparison method. Additionally, a higher proportion of women who work in Nursing Homes are racialized and face a larger pay equity gap.
The background facts to this case are important as they demonstrate the important role of the trade unions in upholding and advocating for human rights and women’s equality. In 2006, ONA started to enforce the nurses' rights to maintain proxy pay equity. The Union sought disclosure of how the Participating Nursing Homes maintained pay equity under their proxy pay equity plans. The Participating Nursing Homes denied any obligation to maintain pay equity; a position that was sustained until their final argument in the Tribunal. They argued that proxy pay equity was a one-time deal and no further comparison to the proxy comparator would be done.
By 2010, ONA applied to the Pay Equity Commission’s Review Services and lost their claim. SEIU followed a similar course of action and by 2011 filed a complaint to Review Services asserting that pay equity under the proxy plans was not maintained. The Unions joined together objecting to the Review Services decisions, arguing that the Pay Equity Act required that the Participating Nursing Homes maintain pay equity through the proxy comparison method and the Act violated the Charter where it did not enable this approach. The Tribunal found that the Act did not require a comparison to an external comparator, but pay equity could be maintained solely within a workplace via an internal equity.
The Divisional Court did not remit the matter back to the Tribunal for reconsideration, as it would further delay the relief the claimants have sought for many years. Rather, the Court ordered maintenance through the proxy comparison method. The Court ordered the Tribunal to specify what procedures should be used to ensure that the claimants have access to the male comparator to determine whether pay equity has been maintained.
Importantly, the Unions were joined by the Equal Pay Coalition, which intervened to provide a broader picture of women in the labour market and analysis of important Charter equality rights.
The Participating Nursing Homes advised the Unions that they will seek leave to appeal the Divisional Court’s decision. The legal struggle for women’s pay equity continues for the most vulnerable in the labour market.
The decisions can be found here and here.
The Equal Pay Coalition has additional details here.