Female employees at for-profit nursing homes win pay equity fight

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TORONTO — Women in predominantly female job sectors must have access to a suitable male comparison group in order to ensure their pay is fair, and stays that way, Ontario’s top court ruled on Tuesday.

In a pair of related decisions, the Court of Appeal found in favour of employees of for-profit nursing homes — an almost exclusively female domain.

At issue was how to ensure the women, after initially achieving pay equity, can ensure they keep receiving fair compensation.

“You don’t get a pay equity decision and it’s all wrapped up in a bow and you’re done,” said Vicki McKenna, president of the Ontario Nurses Association. “You have to maintain it.”

The case involved 143 for-profit long-term care homes, backed by the Ontario government, and two unions — the nurses association and Service Employees International Union — which represent several thousand mostly female workers in the facilities.

Ontario’s Pay Equity Act aims to remedy systemic gender discrimination in terms of pay in predominantly female occupations. This is normally done by comparing male and female job classes.

The problem for the nursing homes, however, is the absence of comparable male groups. In such cases, the legislation provides a “proxy” method that involves looking at comparable women elsewhere who have achieved pay equity with men.

The for-profit nursing homes began in 1994 to use the municipally run Municipal Homes for the Aged for comparison purposes. After extensive negotiations, parity was achieved in 2005.

Since then, however, the unions argue pay equity at the for-profits has eroded, sparking the lengthy legal battle.

The unions turned to the province’s Pay Equity Hearings Tribunal, which in January 2016 came up with a compensation formula after finding the act did not require an ongoing comparison group.

On appeal to Divisional Court, the unions insisted the proxy method should be used on an ongoing basis. For their part, the nursing homes argued the proxy method only applies to establishing pay equity in the first place but not to maintaining it.

In 2019, Divisional Court decided the tribunal’s decision was unreasonable. It found the act did indeed mandate ongoing use of the proxy method to maintain pay equity, and sent the matter back to the tribunal to hammer out how that should happen.

In its 2-1 ruling Tuesday, the Court of Appeal agreed with the lower court that the tribunal’s decision had been unreasonable.

“The text, context, scheme and purpose of the act make it clear that ongoing access to male comparators through the proxy method is required to maintain pay equity,” the Appeal Court said.

In a dissenting opinion, Justice Grant Huscroft praised the tribunal’s decision in making sense of an “extremely complicated” legislative scheme.

“The decision reflects the tribunal’s considerable expertise,” Huscroft said. “It is entitled to deference from this court.”

Nevertheless, McKenna said she was thrilled with the Appeal Court decision. She called for an end to the 15 years of litigation and a resolution to the underlying equity problem.

“It’s time to end this battle,” McKenna said. “Think of the cost of these ongoing litigations over these years, what that has cost the homes, what that has cost the government. To what end?”

Neither the Ministry of the Attorney General nor nursing homes had any immediate comment.

Colin Perkel, The Canadian Press