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Law Times • OcTOber 22, 2018 Page 5 www.lawtimesnews.com Old dispute reignited Pay equity laws face new challenge in Ontario BY ANITA BALAKRISHNAN Law Times A case in the Ontario Pay Equity Hearings Tribunal was recently reignited, jumpstarting a dispute between the Ontario Nurses' Association, a union, and a group of nursing homes alongside the Ministry of the At- torney General of Ontario. The case, held in abeyance since 2016, is now expected to face a judicial review hearing in Ontario Divisional Court in February, the first big legal chal- lenge since the last decision of the Pay Equity Hearings Tribu- nal in 2016 between the Ontario Nurses' Association and the Ministry of the Attorney Gen- eral. The case was heard alongside another before the tribunal, in- volving Service Employees In- ternational Union, Local 1, who, according to the 2016 decision, is the bargaining agent that rep- resents female job classes in the vast majority of Ontario nursing homes. Fay Faraday, founder of Faraday Law in Toronto, says the review of the long-standing nursing home case comes amid several "revolutionary" changes to pay equity law, including a re- cent legal victory from Ontario's midwives. At the end of September, the Human Rights Tribunal of Ontario said the government should take steps to close the pay equity gap for midwives in a decision in the Association of Ontario Midwives case against the Ministry of Health and Long Term Care. Faraday represented interve- nors at the two pay equity cases before the Supreme Court that were decided this spring. She is representing an intervenor in the judicial review of the nurs- ing homes case and was not in- volved in the midwives-related litigation. "What's significant is that both the Supreme Court — in its pay equity decision — and the [Ontario] Human Rights Tribu- nal have, for the first time, really been grappling with what sys- temic discrimination means," she says. "And both of them — under the Human Rights Code and the Charter — have given a solid and robust interpretation of the right to equality that recognizes the way in which systemic discrimi- nation is perpetuated and how difficult it is to dislodge it with- out active intervention." The upcoming hearing on nursing home workers will focus on the so-called proxy method- ology of achieving pay equity. The ONA argued that "changed circumstances" meant this methodology was no longer appropriate for women working at the nursing homes. In particular, the Pay Eq- uity Act stipulated employers use the " job-to-job" method of pay comparison, where "female job classes in an establishment of the employer are compared to male job classes of equal or comparable value in the same establishment," the 2016 deci- sion says. But because nursing home workers have historically been 90 per cent female, it is of "lim- ited use" to try and compare male-dominated jobs with fe- male-dominated jobs within the same workplace, wrote the tri- bunal's panel, chaired by Mary Anne McKellar and joined by Catherine Bickley and Carla Zabek. There was an alternate plan, a one-time calculation of a pay equity job rate calculated with the proxy method, but it ran into trouble when workers began to encounter new equipment, titles, educational requirements and an increased number of residents with severe cognitive or behavioural problems, the de- cision said. The tribunal, however, ulti- mately sided with the province, writing in a 76-page decision: "Where the employer of the male and female job classes is the same, any difference may be explained by other factors, such as a change in the relative value of the work performed, or differ- ences in bargaining strength. "Additionally, it could arise as a result of other characteristics of the employer or the employment contract: the size of the employ- er; its financial health; the source of funding wages; and collective agreement trade-offs as between wages and other benefits, mon- etary or otherwise," according to the decision. However, thanks to the out- come of two Supreme Court of Canada cases — Centrale des syndicats du Québec v. Quebec (Attorney General) SCC 18 and Québec (Procureure générale) c. Alliance du personnel pro- fessionnel et technique de la santé et des services sociaux, 2018 CSC 17 — the 2016 Ontar- io Pay Equity Hearings Tribunal decision may be reviewed. "The nursing homes case was put on hold while the Supreme Court cases were going on, be- cause the Supreme Court cases addressed the two key issues," says Faraday, who was one of the lawyers that represented a coalition of intervenors, includ- ing Ontario's Equal Pay Coali- tion, the Women's Legal Educa- tion and Action Fund and the New Brunswick Coalition for Pay Equity. In the Ontario judi- cial review of the nursing home case, Faraday is representing the equal pay coalition, which has intervener status. "One is access to pay equity for women working in female- dominated workplaces, and the second issue is the right to main- tain pay equity." In Centrale des syndicats du Québec v. Quebec (Attorney General), Quebec gave its pay equity commission more time to determine pay equity for women in workplaces where there were no mostly male jobs for compar- ison, the SCC's brief said. The majority of the court de- cided that delaying access to pay equity for this group of women was discriminatory, the brief said, although the court did not strike down the law. The same day, Québec (Procureure gé- nérale) c. Alliance du person- nel professionnel et technique de la santé et des services so- ciaux, 2018 CSC 17 did strike down other parts of Quebec's pay equity laws, the SCC brief said. Faraday spoke about recent changes to pay equity law at the 17th annual Charter Conference in Toronto. She spoke on a panel with Zachary Green, counsel in the Constitutional Law Branch of the Ministry of the Attorney General of Ontario, and Shaun O'Brien, legal director of the Women's Legal Education and Action Fund. "What I like about these deci- sions is that they situate pay for women in the broader social and historical context," O'Brien says of the SCC cases. "When you know all of that — from our perspective, and it was accepted by the Supreme Court — to say this is just about the type of workplace is too thin of an analysis; it doesn't get at the substance of what's going on." Green, who has represented the Crown in pay equity cases, says there are still overarching issues when it comes to choos- ing forums for these cases. He said that regulatory harmoniza- tion is the most obvious solution so that groups cannot get better outcomes by using a different forum that relies on 19 words in the Human Rights Code, rather than what is granted under the Pay Equity Act, which is lengthy and highly technical. Green compared the dispar- ity between the two forums as "regulatory arbitrage," akin to a company moving its headquar- ters in title only to avoid taxes or regulations. He noted that after several key cases, there was increased interest from unions and oth- ers for pursuing claims in the Human Rights Tribunal, rather than the Pay Equity Hearings Tribunal, which sometimes al- lowed for or had a remedy for the contested wage differences. The Human Rights Code ap- pears to give "better answers" for issues such as comparators and measurement of compensation, Green says. He says the Pay Equity Act has provisions for wage differ- ences due to bargaining power or skill shortages, for example, in order to uphold the supply and demand of labour — and none of those provisions is ex- plicitly laid out in the Human Rights Code. "No question that these two acts serve the same purpose," Green says. "But they are writ- ten in very different ways. . . . It's counterintuitive to conceive of an employer that complies with its obligations under the Pay Eq- uity Act as being in contraven- tion of s. 5 of the Code." LT NEWS We are pleased to present the 2018 Guthrie Award to Mary Birdsell Ms Birdsell has dedicated her legal career to advocating for the rights of children and youth. She has made a difference in many ways - by taking legal services to youth living on the street to intervening at the Supreme Court of Canada. Mary has worked tirelessly to advance young people's access to justice and to make their voices heard. The Guthrie Award was created in honour of past Foundation Chair, H. Donald Guthrie and is given to individuals who have a significant track record of furthering access to justice. Through granting and collaboration, The Law Foundation of Ontario invests in knowledge and services that help people understand the law and use it to improve their lives. www.lawfoundation.on.ca ntitled-6.indd 1 2018-10-17 4:46 PM Fay Faraday says both the Supreme Court and the Ontario Human Rights Tribunal have been grappling to define systemic discrimination in pay equity. What I like about these decisions is that they situate pay for women in the broader social and historical context. Shaun O'Brien LawTimesNews.com Fresh Ontario legal news and analysis available on any device. Get More Online

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