Introduction

Many seniors in Ontario end up in nursing homes or homes for the aged. The care they receive is predominately provided by female care workers. Most are health care professionals of one designation or the other. The care they provide is highly-regulated and extremely important work.

Pay Equity

The purpose of the Pay Equity Act (PEA) was to recognize and redress the systemic discrimination that women have suffered in their rates of pay compared to men doing the same or similar work. The PEA placed the onus on public sector employers to proactively attain and maintain pay equity for their employees. Comparisons are therefore needed, and the PEA provides three methods of doing so:

  1. Job-to-job
  2. Proportional value
  3. Proxy

The method used depends on the gender predominance of the job classes in the workplace in question. The proxy method was added in 1994 to address female-dominated workplaces.

The Stakeholders

The Ontario Nurses Association (ONA) represents the female job classes of 2,100 Registered Nurses (RN) and other allied healthcare professionals who are employed by approximately 200 nursing homes throughout the province. In addition, the Service Employees International Union (SEIU) represents female job classes including Registered Practical Nurses (RPN), personal support workers, health care aides, dietary, housekeeping and recreational aides in the same nursing homes.

The Participating Nursing Homes (PNH) operates 143 for-profit nursing homes. As members of the Public Sector and are therefore required to achieve and maintain pay equity.

Maintenance of Pay Equity

Pay equity had been achieved in the past by the PNH. In a recent court proceeding, the ONA and the SEIU took the position that the ongoing maintenance obligations of the PEA were not being met because the PEA requires the maintenance of pay equity in predominately female workplaces through the proxy comparison method, and reliance on external comparator workplaces. Alternatively, they argued that the PEA violates s. 15 of the Canadian Charter of Rights and Freedoms.

The proceeding followed a request for judicial review of a decision by the Pay Equity Hearings Tribunal. The Tribunal felt that using the proxy method in these circumstances was extraordinary and that the employers were only required to maintain pay equity within their individual workplaces by comparison to their male workers and based on a comparison of all possible employers.

Bottom Line

The appellants were unsuccessful with the Charter argument but were successful in the proxy question. The standard of review was one of reasonableness based on the Supreme Court of Canada’s (SCC) 2012 decision Dore v. Barreau du Quebec.

In the case at hand, the Tribunal decision was found to be unreasonable as the Tribunal had not considered Charter values in its interpretation of the PEA. The goal of equality contained in the Charter mandated that the PEA be interpreted in light of the main goal of the PEA being ongoing pay equity to prevent the reemergence of discrimination against women. Ultimately, the court remitted the decision back to the Tribunal to determine how to ensure that claimants who achieved pay equity via the proxy method would continue to have access to a male comparator model, in order to ensure that equity is maintained.

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