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Ontario’s Pay Equity Act

with Selected Case References, 2022

Disclaimer: This resource is for information only, and is intended to assist employers in complying with the Pay Equity Act. It is not to be construed or considered as legal advice, nor warranted to be complete and accurate, and may be amended without notice. It does not restrict Review Officers of the Pay Equity Office in their interpretation and determination of matters under the Act.

Crown as employer

1.1. (1) For the purposes of this Act, the Crown is not the employer of a person unless the person,

(a) is a public servant employed under Part III of the Public Service of Ontario Act, 2006; or

(c) is employed by a body prescribed in the 2006, c. 35, Sched. C, s.107 (1).

Ontario Teachers’ Plan Board v. Ontario Public Service Employees’ Union, Local 598, 1995 CanLII 7029 (ON PEHT) 1995-08-17 — The issue in this case is who is the employer of the employees at the Ontario Teachers’ Pension Plan Board represented by the Ontario Public Service Employees Union. The Board was found not to be an agency of the crown based on the existing relationship and the control test. Specifically, although the board was a creature of statute, on the balance, the relationship was predicated on “administrative convenience” which allowed the Board to operate as a separate entity.

Michipicoten (Township) v. Ontario (Crown in Right), 1995 CanLII 7036 (ON PEHT) 1995-02-28 — There was a dispute whether the Crown or the Township was the employer for a Resource Centre providing services to women in Crisis. Both parties agreed that the Resource Centre as an entity was not capable of being an employer. At para. 2, the Tribunal explicitly notes that section 1.1(1) precludes them from issuing a remedy that named the Crown as the employer. The Township was ultimately deemed to be the employer because even though the Crown funded the project, the Township had significant control.

Community Living North Perth v. Ontario Public Service Employees Union, 2016 CanLII 11531 (ON PEHT) 2016-03-02 – Although there was agreement that the Crown was not the employer, the Applicant asked the Tribunal to hear the application and direct the Crown to provide the funding necessary to allow the employer to meet its obligations under the Act. The Tribunal refused at para. 19, where it held that a plain reading of this section precludes the Crown from being found as an Employer. Specifically, at para. 17, the Tribunal notes that there is no provision under the Act that grants the Tribunal authority to make an Order against the Crown save and except a finding that the Crown is the Employer.

Kingston-Frontenac Children’s Aid Society (No. 2)(1992) 3 P.E.R. 117 — [HARD COPY] The Act was amended after this decision, which found that the Crown was the Employer based on the tests previously established at the Tribunal. There were other orders by Review Officers that deemed the Crown as the employer for pay equity purposes under Kingston-Frontenac, however, the amendment to add section 1.1 now precludes the Crown as being considered to be the employer under the Act.

Plans posted before Dec. 18, 1991

(2) If the Crown and a bargaining agent have agreed that the Crown is the employer of the employees represented by the bargaining agent and a pay equity plan in accordance with that agreement was posted before the 18th day of December, 1991, the Crown shall be deemed to be the employer of those employees. 1993, c. 4, s. 2.

Same

(3) If the Crown posted a pay equity plan before the 18th day of December, 1991 for employees who are not represented by a bargaining agent, the Crown shall be deemed to be the employer of those employees. 1993, c. 4, s. 2.

Application

(4) This section does not apply,

(a) if a determination that the Crown is the employer was made by the Hearings Tribunal before the 18th day of December, 1991; or

(b) if an application respecting a proceeding in which the Crown’s status as an employer is an issue was filed with the Hearings Tribunal before the 18th day of December, 1991. 1993, c. 4, s. 2.

Same

(5) This section, except for subsections (2) and (3), does not apply to determine the identity of the employer of an individual if a pay equity plan applicable to that individual prepared in accordance with a review officer’s order was posted before the 18th day of December, 1991. 1993, c. 4, s. 2.

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