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Ontario’s Pay Equity Act

with Selected Case References, 2022

Disclaimer: This Guide gives an overview of the minimum requirements of the Pay Equity Act as interpreted by the Pay Equity Office. The interpretations are drawn from our own experiences and by applying the key rulings of the Pay Equity Hearings Tribunal and the courts and is current to the date ​of publication.

Establishments with bargaining units

In this section

14. (1) In an establishment in which any of the employees are represented by a bargaining agent, there shall be a pay equity plan for each bargaining unit and a pay equity plan for that part of the establishment that is not in any bargaining unit.

Bargaining unit plans

(2) The employer and the bargaining agent for a bargaining unit shall negotiate in good faith and endeavor to agree, before the mandatory posting date, on,

(a) the gender-neutral comparison system used for the purposes of section 12; and

(b) a pay equity plan for the bargaining

Riverdale Hospital (No. 1) (1990) 2 P.E.R. 1 — Section 14 of the Act imposes a joint obligation upon the employer and a bargaining agent to negotiate in good faith and endeavour to agree upon a gender-neutral comparison system and a pay equity plan. This duty includes the obligation to disclose information necessary or relevant to pay equity negotiations. In the process of negotiating a gender-neutral comparison system and a pay equity plan, the parties must disclose sufficient information to ensure that rational and informed discussion can take place between the parties. The information requested in this context must be rationally related and relevant to an issue in the process.

Haldimand-Norfolk (No. 6) (1991) 2 P.E.R. 105 — The Ontario Nurses Association alleged that the employer adopted a gender biased comparison system. There are 4 components to a gender-neutral comparison system:

(I) the accurate collection of job information;

(II) deciding on the mechanism or tool to determine how the value will attach to the job information;

(III) applying the mechanism to determine the value of the work performed; and

(IV) making the comparisons

In negotiating the system, parties have the flexibility to fashion a comparison system to meet their needs. As a starting point, they are required to ensure that each component which forms part of the comparison system is gender neutral. Bias in one part means the system as a whole is not gender neutral. Gender bias must be eliminated from all parts of the comparison system. Whatever system is proposed, it must consider the establishment to which it will be applied and must specifically address the range of work performed by female job class.

Haldimand-Norfolk (No.6) (1991), 2 P.E.R. 105 — This case sets out the criteria used to determine whether parties have met the requirement to bargain in good faith. For an in-depth look, see the case summary under s.12.

Ontario Nurses’ Association v. Women’s College Hospital, 1992 CanLII 4706 (ON PEHT) 1992-08-04 — The Tribunal determined that the proposed comparison system did not meet the standard of gender neutrality and the parties were directed to negotiate and design one that did. The system’s ability to measure and value skills required by nurses in the complexity, judgement, education, experience, initiative, contact, scope of supervision, physical demands, result of errors, and working conditions factors was incomplete.

Ontario Public Service Employees Union v. Cybermedix Health Services Ltd.1989 CanLII 1459 (ON PEHT) 1989-07-06 — The union’s application alleges that the employer did not negotiate in good faith. The Tribunal held that more information needed to be disclosed and parties are jointly responsible for the process and content of the pay equity negotiations. To meet these obligations, information relevant to pay equity issues must be disclosed so that rational and informed discussions may occur. Disclosure must be made whenever the parties cannot agree on an issue without the information requested. Both parties are entitled to sufficient information to make informed choices at all stages.

Ontario Nurses’ Association v. St. Joseph’s Villa, 1993 CanLII 5412 (ON PEHT) 1993-08-19 — Where there are bargaining agents in the employer’s establishment, section 14 stipulates that the employer cannot establish pay equity unilaterally but must do so through negotiations with various bargaining agents representing employees. Section 7(2) requires a bargaining agent and employer not to bargain for compensation practices that would disrupt achieving pay equity. To do so, the bargaining agent must have knowledge of the terms of the plan that has been implemented and must have the knowledge of the content of other jobs and their conditions of employment, thus requiring disclosure from the employer.

TRW Canada Limited v. Canadian Auto Workers, 1995 CanLII 7216 (ON PEHT) 1995-05-12 — During negotiations, the parties were unable to agree on comparability, but did agree on a gender-neutral comparison system. The Tribunal held that parties are bound by agreements entered into before and during the Review Services process when negotiating a pay equity plan.

Ottawa Public Library Board v. Ottawa-Carleton Public Employees Union, 2015 CanLII 6950 (ON PEHT) 2015-02-03 — This case provides a detailed interpretation of an agreement between a union and employer. In particular, they look at the availability of an arbitration clause and found that parties are bound by the agreements they have reached.

Idem

(3) As part of the negotiations required by subsection (2), the employer and the bargaining agent may agree, for the purposes of the pay equity plan,

(a) that the establishment of the employer includes two or more geographic divisions; and

(b) that a job class is a female job class or a male job.

Posting of plan

(4) When an employer and a bargaining agent agree on a pay equity plan, they shall execute the agreement and, on or before the mandatory posting date, the employer shall post a copy of the plan in the workplace.

Deemed approval and first adjustments

(5) When a pay equity plan has been executed by an employer and a bargaining agent, the plan shall be deemed to have been approved by the Commission and, on the day provided for in the plan, the employer shall make the first adjustments in compensation required to achieve pay equity.

 

Ontario Northland Transportation Commission v. Transportation Communications International Union, 1992 CanLII 4696 (ON PEHT) 1992-09- 30 — Although an agreed upon pay equity plan between a bargaining agent and an employer is a deemed approved plan, the Tribunal has jurisdiction to inquire into it in some situations. This includes reviewing a plan’s compliance where one party alleges a violation of the Act. At para. 18, the Tribunal notes that employers and bargaining agents cannot agree to something which contravenes the Act. Deemed approval status does not render parties immune from scrutiny.

Ontario Northland Transportation Commission v. Pay Equity Hearings Tribunal, 1993 CanLII 5424 (ON PEHT) 1993-06-28 — This application was heard at the Divisional Court. The applicant alleged the Tribunal had no jurisdiction over deemed approved plans agreed upon by bargaining agents and employers. The Court disagreed and found that parties cannot contract out of the Act and rely on the deemed approval of a plan where a plan clearly contravenes the Act.

Ottawa Board of Education v. Ontario Secondary School Teachers’ Federation, 1996 CanLII 7947 (ON PEHT) 1996-05-28 — At para. 24, the Tribunal notes that deemed approval is contingent on the passage of time. Where there is no bargaining agent, deemed approval occurs after the requisite objection period, and where there is a bargaining agent, it occurs upon the plan’s execution by the parties. In addition, at para. 28, they clarify that the deemed approval provision does not insulate a negotiated plan which contravenes the Act from being challenged under section 22(1). For the facts of the case, see the case summary under s. 5.1(1).

Group of Employees v. Parry Sound District General Hospital, 1995 CanLII 7205 (ON PEHT) 1995-05-29 — In an application brought by a group of union- represented employees, the applicants are unable to make out a prima facie case without further submissions. At para. 68, the Tribunal clarifies that with respect to the gender characterization of job classes, there are a range of possible outcomes in the Act which are available to negotiating parties. As such, deference must be afforded to a deemed approved plan.

Houston v. Centennial College, 2002 CanLII 49436 (ON PEHT) 2002-01-25 — A group of employees complained that the job class evaluation undertaken by the employer for a deemed approved plan did not properly value some of their work. Per paras. 18-20, a complaint against a deemed approved plan is required to be based on a contravention of Part I. The Tribunal dismissed the application and noted that disagreement regarding job evaluation results does not make out a prima facie case of contravention against a deemed approved plan. Once a plan is deemed approved, subsequent events don’t open it up to objections.

McNeil v. Kirkland Lake (Town), 2002 CanLII 49446 (ON PEHT) 2002-09-25 — An employee brought this application alleging that her bargaining agent and the employer failed to negotiate the proper male comparator for her job class and bring the Application on her behalf. At paras. 41-43, the Tribunal found that the Applicant challenged the process significantly, but failed to make out a prima facie case of a breach of Part I of the Act.

Management Board Secretariat (1993) 4 P.E.R. 58f Part I of the Act — The parties cannot contract out of the standards of the Act. At the same time, the Tribunal must accord considerable deference to parties who are obligated by the Act to negotiate and implement pay equity. This deference is necessary not only because of the deemed approved provisions of the Act, but also because the standards in the Act are not always easily discernible and some are specifically subject to negotiations.

Humber College of Applied Arts and Technology (Re), 2000 CanLII 22417 (ON PEHT) 2000-06-20 — An employer argued that a Review Officer did not have jurisdiction to make an Order where no objection or complain had been made with respect to a deemed approved plan. The Review Officer learned of the plan’s deficiencies undergoing a related investigation. The Tribunal held that Review Officers have the jurisdiction to issue an order in the absence of a complaint or objection where they have formed an opinion there has been a contravention of the Act. At para. 28, they hold that a Review Officer stands in no better position than any Applicant complaining about a deemed approved plan.

Ontario Northland Transportation Commission v. Transportation Communications International Union, 1992 CanLII 4696 (ON PEHT) 1992-09- 30 — Although an agreed upon pay equity plan between a bargaining agent and employer is a deemed approved plan, the Tribunal has jurisdiction to inquire into it in some situations. This includes reviewing a plan’s compliance where one party alleges a violation of the Act. The Tribunal may also examine the circumstances to determine whether a misrepresentation during negotiations constituted failure to bargain in good faith. At para. 18, the Tribunal notes that employers and bargaining agents cannot agree to something which contravenes the Act.

Failure to agree

(6) Where an employer and a bargaining agent fail to agree on a pay equity plan by the mandatory posting date, the employer, forthwith after that date, shall give notice of the failure to the Commission.

Idem

(7) Subsection (6) does not prevent the bargaining agent from notifying the Commission of a failure to agree on a pay equity plan by the mandatory posting

Non-bargaining unit plan

(8) An employer shall prepare a pay equity plan for that part of the employer’s establishment that is outside any bargaining unit in the establishment and, on or before the mandatory posting date, shall post a copy of the plan in the workplace.

Idem

(9) Subsections 15 (2) to (8) apply to a pay equity plan described in subsection (8). R.S.O. 1990, c. P.7, s. 14.

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