Ontario appealing 2019 court decision on pay equity for nursing home workers

The Ontario Government is currently appealing a 2019 decision on pay equity involving nurses and other service workers employed in nursing homes.

Heard by the Ontario Court of Appeal on Oct. 6 and 7, the case stems from the Divisional Court decision in Ontario Nurses’ Association v. Participating Nursing Homes, 2019 ONSC 2168. At issue is how workers in a female-dominated profession can maintain pay equity when there are so few male colleagues to with whom to compare salaries. The ONA and Service Employees International Union argue they should have continued access to a method of comparison provided by the Pay Equity Act, which would measure their wages against male work in a proxy workplace.

The pay-equity comparison was done initially in 1994. The ONA and SEIU argue it should be revisited to ensure that pay equity is maintained over time.

“The women originally achieved pay equity by using the proxy comparators that were set out in the regulation. And this case is about, going forward over time as these workplaces remain highly female dominated, do they get to still have access to that proxy male comparator in order to make sure that the gender wage gap hasn't re-emerged for them?” says Danielle Bisnar, partner at Cavalluzzo LLP, who acted for the ONA.

Ontario and the participating nursing homes argue that comparison should happen only once. The appellants argue that when the comparison was executed 26 years ago, it created a “value-to-compensation relationship,” which allows the sector to maintain pay equity, says Bisnar.

The 2019 Divisional Court decision was the result of a judicial review, brought by the unions, of a Pay Equity Hearings Tribunal decision. The Tribunal had found that maintaining pay equity did not require continued reference to the male comparator. Justices Geoffrey Morawetz, Donald Gordon and Nancy Backhouse found the Tribunal erred by failing to properly consider the Charter values when interpreting the Pay Equity Act.

The Government and nursing homes argued it was improper for the Court to rely on Charter values in interpreting the legislation, says Bisnar. The unions argued the reasoning was sound but further contend that without needing to resort to Charter values, the way the Pay Equity Act is drafted and how it operates leads to the conclusion that those covered “should have access to the same method of comparison to maintain pay equity, as they had in order to achieve pay equity,” she says.

“Because the point of having different comparison methods under the Act is to ensure that women have a way of comparing to male compensation for work of equal value,” says Bisnar.

“I think one of the things that has really come to the fore in the context of the pandemic is how difficult and essential the work that the women, who are at the centre of this appeal, really is,” says Bisnar. “And staffing and retention has really become something that has come into focus through the pandemic and we’ve seen the impact of staffing difficulties on the spread of the outbreak.”

The Ontario Nurses Association represents more than 68,000 registered nurses and other health professionals. Service Employees International Union represents more than 60,000 healthcare and community service workers in Ontario.