On September 23, 2019, the Ontario Court of Appeal granted leave to appeal the critical pay equity decision impacting employers who achieved pay equity using the proxy method in Ontario. As we reported back in May, the law related to pay equity for proxy employers continues to evolve. On April 30, 2019 the Division Court released its Judicial Review decision in the pay equity case of O.N.A v. Participating Nursing Homes. You can read a full summary of that decision here. According to that decision, once an employer achieves pay equity using the proxy method the employer is required to maintain pay equity – not by merely ensuing that no new internal wage gaps emerge – but rather by looking at the current wage rates from their original pay equity proxy comparator (usually a hospital). This decision has potentially devastating implications for government funded employers who have gone without funding for pay equity for more than a decade.
As expected, the employers in this case have appealed. The Ontario Court of Appeal granted leave to appeal on September 23, 2019 and the matter is now being set down for hearing on an as yet unknown date.
In the meantime, the Pay Equity Hearings Tribunal released a decision on September 10, 2019 that subtly questioned the Divisional Court’s ruling and at the same time reaffirmed the principle that once pay equity is achieved an employer is under no obligation to negotiate pay equity maintenance with the union representing its employees. Rather, the employer is entitled to management maintenance unilaterally. It would not be surprising to see this decision challenged as well.
As always, PooranLaw will provide you with continuing updates on Pay Equity and the other key labour and employment issues relevant to not-for-profit employers serving people with disabilities.
