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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.

Hearings

In this section

25. (1) The Hearings Tribunal shall hold a hearing,

(a) if a review officer is unable to effect a settlement of a complaint and has not made an order under subsection 24 (3);
(b) if a request for a hearing, as described in subsection 23 (4) or 24 (6), is received by the Hearings Tribunal; or
(c) if a review officer refers a matter to the Hearings Tribunal under subsection 24 (5). R.S.O. 1990, c. P.7, s. 25 (1).

O.P.E.D. No. 20 ONPayEquHearTrib – 2009 May 28 “]

Ontario Public Service Employees Union v. Ontario (Ministry [2009] O.P.E.D. No. 20 ONPayEquHearTrib – 2009 May 28 — Tribunal has repeatedly determined that it does not have jurisdiction over an application until a Review Officer has investigated and attempted to settle it (see by way of example: Haldimand-Norfolk (Regional Municipality), [1989] O.P.E.D. No. 1 (April 25, 1989) and the decisions referred to therein).

Ontario Nurses’ Association v. St. Michael’s Hospital, 1991 CanLII 4450 (ON PEHT) 1991-08-20 — The Union made an application to the Tribunal alleging that the Employer breached several provisions of the Act. The Employer argued that the Tribunal has no jurisdiction to hear the matter since a Review Officer did not notify the parties and the Tribunal that a settlement cannot be offered or that they will not be making an Order. The Tribunal held that it must find that a Review Officer was unable to affect a settlement before it can hear the matter and finding this is a decision for the Tribunal. The Tribunal must balance the efficacy of the Review Services process with the parties’ right to have the matter determined with the Tribunal. In this case, the Tribunal decided that there was no reasonable opportunity for a settlement by a Review Officer and the application to the Tribunal was premature.

Beaton v Brant Haldimand Norfolk Catholic District School Board, 2013 CanLII 62327 (ON PEHT) 2013-09-18 — The Respondent brought a motion to dismiss the application since there is a six-year delay between the Applicant’s application and the Review Officer’s Notice of Decision. The Tribunal held that the onus is on the moving party to establish an abuse of process and show that it is not possible for the Tribunal to conduct a fair hearing as a result of the delay. The Tribunal also found that when deciding if there has been an abuse of process, it is important to consider the length of the delay and which party or entity has contributed to the delay.

Reference stayed

(1.1) A reference under subsection 24 (5) respecting an order shall not proceed if the Hearings Tribunal has confirmed, varied or revoked the order following a hearing requested under subsection 23 (4) or 24 (6). 1993, c. 4, s. 15 (1).

Orders

(2) The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,

Maitland Manor Health Care Centre v. Mattuci, 2015 CanLII 67576 (ON PEHT) 2015-10-19 — The Tribunal held that it may confirm, vary or revoke an RO Order under subsection (d) or may order a party to the proceeding take or refrain from such action as is required in the circumstances under subsection (g) where the rights of the requesting party are found to have been substantially and irreparably prejudiced.

BICC Phillips Incorporated v. Group of Employees, 1997 CanLII 12223 (ON PEHT) 1997-10-07 — A Review Officer made and Order finding that the employer failed to maintain pay equity. The Employer sought to have the Order revoked by the Tribunal arguing that it could not maintain pay equity given the changed circumstances it its establishment. The Tribunal found that it can only revoke the Order if it is satisfied that the “job rates for the female job classes are at least equal to those of the male job classes identified under the plan as performing work of equal or comparable value to them and this consistently been the case from the date that pay equity was achieved under the plan.” If this element is not satisfied, the Tribunal must find that there are any justifications under the Act for the differences in job rates.

(a) (a) where it finds that an employer or a bargaining agent has failed to comply with Part II, III.1 or III.2, may order that a review officer prepare a pay equity plan for the employer’s establishment and that the employer and the bargaining agent, if any, or either of them, pay all of the costs of preparing the plan;

(b) where it finds that an employer has contravened subsection 9 (2) by dismissing, suspending or otherwise penalizing an employee, may order the employer to reinstate the employee, restore the employee’s compensation to the same level as before the contravention and pay the employee the amount of all compensation lost because of the contravention;

(c) where it finds that an employer has contravened subsection 9 (1) by reducing compensation, or has failed to make an adjustment in accordance with subsection 21.2 (2), may order the employer to adjust the compensation of all employees affected to the rate to which they would have been entitled but for the reduction in compensation and to pay compensation equal to the amount lost because of the reduction;

(d) may confirm, vary or revoke orders of review officers;

(e) may, for the female job class that is the subject of the complaint or reference, order adjustments in compensation in order to achieve pay equity, where the Hearings Tribunal finds that there has been a contravention of subsection 7 (1);

(e.1) may determine whether a sale of a business has occurred;

(f) may order that the pay equity plan be revised in such manner as the Hearings Tribunal considers appropriate, where it finds that the plan is not appropriate for the female job class that is the subject of the complaint or reference because there has been a change of circumstances in the establishment; and

(g) may order a party to a proceeding to take such action or refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances. R.S.O. 1990, c. P.7, s. 25 (2); 1993, c. 4, s. 15 (2-4); 1996, c. 1,
Sched. J, s. 6 (1).

Idem

(3) An order under clause (2) (a) may provide that a review officer may retain the services of such experts as the review officer considers necessary to prepare a pay equity plan. R.S.O. 1990, c. P.7, s. 25 (3).

Application of Parts II, III.1 and III.2

(4) Parts II, III.1 and III.2 apply with necessary modifications to a pay equity plan prepared under clause (2) (a) but,

(a) the order of the Hearings Tribunal may provide for a mandatory posting date that is later than the one provided in section 10 or a posting date that is later than the one provided under section 21.7 or 21.19;
(b) the order of the Hearings Tribunal shall not provide for a compensation adjustment date that is different than the relevant date set out in clause 13(2)(e) or a date that is later than the one provided under section 21.10 or 21.22;
(c) the review officer shall perform the duties of the employer and the bargaining agent, if any;
(d) when the review officer posts the plan in the workplace as subsection 14(4) or 15(6) provides, the employer, the bargaining agent (if the plan relates to a bargaining unit), or any employee or group of employees to whom the plan applies (if the plan does not relate to a bargaining unit) may file an objection with the Hearings Tribunal; and
(e) an objection under clause (d) shall be dealt with by the Hearings Tribunal under section 17. R.S.O. 1990, c. P.7, s. 25(4); 1993, c. 4, s. 15(5 7); 1996, s.
1, Sch. J, s. 6(2 4).

Same

(4.1) Despite subsection (4), section 16 does not apply with respect to a pay equity plan prepared under clause (2) (a). 1993, c. 4, s. 15 (8).

Retroactive compensation adjustments

(5) An order under clause (2) (e) may be retroactive to the day of the contravention of subsection 7 (1).

Idem

(6) An order under clause (2) (f) may provide that adjustments in compensation resulting from the revision of the pay equity plan be made retroactive to the day of the change in circumstances that gave rise to the order. R.S.O. 1990, c. P.7, s. 25 (5, 6).

Burden of proof

(7) In a hearing before the Hearings Tribunal, a person who is alleged to have contravened subsection 9 (2) has the burden of proving that he, she or it did not contravene the subsection. 1993, c. 4, s. 15 (9).

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