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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 without bargaining units

15. (1) In an establishment where no employee is represented by a bargaining agent, the employer shall prepare a pay equity plan for the employer’s establishment and the employer, on or before the mandatory posting date, shall post a copy of the plan in the workplace.

Idem

(2) For the purposes of a pay equity plan required by this section or subsection 14 (8), the employer may decide,

(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 class.

Brampton Public Library (No.2) (1994), 5 P.E.R. 51 [HT/76] — The Tribunal confirmed that parties to a pay equity plan can broaden the definition of establishment. They examined what the parties agreed to given that no male job classes were found to be comparable to female job classes within the Board. They found that because the parties entered into a pay equity agreement using comparators from the City for female job classes, the parties agreed to an establishment wider than the Board. Under this agreement, the employer exceeded the statutory minimums and could not retract from that agreement.

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

(3) An agreement under section 14 between an employer and a bargaining agent shall not affect any pay equity plan required by this section or subsection 14 (8). R.S.O. 1990, c. P.7, s. 15 (1-3).

Employee review

(4) The employees to whom a pay equity plan required by this section or subsection 14 (8) applies shall have until the ninetieth day after the date on which the copy of the plan is posted to review and submit comments to the employer on the plan. R.S.O. 1990,
c. P.7, s. 15 (4); 1993, c. 4, s. 10.

Changes

(5) If as a result of comments received during the review period referred to in subsection (4), the employer is of the opinion that a pay equity plan should be changed, the employer may change the plan.

Posting of notice

(6) Not later than seven days after the end of the review period referred to in subsection (4), the employer shall post in the workplace a notice stating whether the pay equity plan has been amended under this section and, if the plan has been amended, the employer shall also post a copy of the amended plan with the amendments clearly indicated.

Objections

(7) Any employee or group of employees to whom a pay equity plan applies, within thirty days following a posting in respect of the plan under subsection (6), may file a notice of objection with the Commission whether or not the employee or group of employees has submitted comments to the employer under subsection (4).

Deemed approval and first adjustments

(8) If no objection in respect of a pay equity plan is filed with the Commission under subsection (7), 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. R.S.O. 1990, c. P.7, s. 15 (5-8).

Reynolds et al v. Southlake Residential Care Village, 2017 CanLII 59582 (ON PEHT) 2017-09-07 — A group of employees made an application challenging a pay equity plan for which they were not notified of the posting. As such, the plan was deemed approved. At para. 11, the Tribunal held that the Act is unequivocal in that if no objection is filed under s. 15(7), the pay equity plan is deemed approved by the Pay Equity Commission

Maitland Manor Health Care Centre v. Mattuci, 2015 CanLII 67576 (ON PEHT) 2015-10-19 — An employer, in an application against a Review Officer’s order, argued that the complaint of an employee about the non-union pay equity plan cannot prevent the plan from being deemed approved as it was delayed. At paras. 28 and 30, the Tribunal confirms that where a pay equity plan is posted in accordance with the Act, without objections and implemented, it becomes deemed approved in accordance with the Act despite defects in the plan.
Ontario Nurses’ Association v. Participating Nursing Homes, 2016 CanLII 2675 (ON PEHT) 2016-01-21 – The pay equity plan entered into used the proxy method of comparison prior to the government changing and repealing the provisions. At para. 45, the Tribunal cites the agreed statement of facts, which notes that pay equity plans may be deemed approved, even if arrived at outside the parameters of the Act, so long as the plan has been posted and no objections have been filed under s. 15(7) of the Act. As such, the Tribunal confirms that the proxy plans’ deemed approved nature are not in question.

Royal Crest Lifecare Group v. Warner, 2002 CanLII 49458 (ON PEHT) 2002- 11-18 – An employer objected to an order concluding it had not made the pay equity adjustments required in the pay equity plans it had posted for non-union staff. Under the plan the employer was to adjust the job rate of each female job class by $1.50, which it failed to do contrary to its obligations. The Tribunal, at para. 12, found that calling certain adjustments “pay equity adjustments” was not enough to fulfill the employer’s obligations. Further, an employer cannot re- configure its compensation practices, label the exercise “pay equity” and avoid making the pay equity adjustments required.

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