Even though a plan is “deemed approved” it is not insulated from a complaint or from a review by the Office or Tribunal. In Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, 1996 CanLII 7947 (ON PEHT) the Tribunal set out when a complaint about a deemed approved plan could be made:
“While deemed approval of the plan binds the parties, it is not a certification that the plan fully complies with the Act. It does not mean that it necessarily conforms to the statute, or that the minimum constituent elements of pay equity, set out in Part I of the Act, have been correctly implemented.”
… “Where an applicant alleges that a deemed approved plan contravenes the Act, the applicant must show how the compensation practices established in the plan fail to provide for pay equity and must do so by reference to the specific provisions of Part I of the Act. In reviewing a deemed approved plan the Tribunal is less concerned with the process by which the plan was created and more interested in whether the result is consistent with the objectives of the Act. The Tribunal recognized that certain provisions of Part I require exact application while other sections leave some discretion to the parties. The standard of review reflects this duality. The Tribunal will apply a reasonableness test to review of decisions on those aspects of the Act which permit discretion. Where the Act imposes an exact requirement, the relevant portion of the plan will be reviewed for correctness.”
In the decision, the Tribunal also set out the standard of proof required to establish a complaint:
“In some instances, proof that Part I has been contravened may be quite straight forward and achieved by reference to the plan alone. This is more likely when the provision alleged to be contravened sets out an exact standard. In other cases, it may be necessary to examine the documents behind the plan or provide an expert opinion in order to have a fuller understanding of the alleged violation. More significantly, it may be necessary to call experts to provide objective evidence, external to the plan and its development, to establish whether or not the plan’s result is reasonable.”
To summarize, in order to be successful in challenging a deemed approved plan, the complaint must be able to show that the plan contains a specific contravention of the minimum requirements of Part I.