The case stems from Ontario nursing homes which are mostly staffed with women, and pay equity is determined with no male counterparts present. In a win for gender equity, the judicial review ruled that not following the proxy method to maintain pay equity fails to uphold values of the constitution.
“Today’s unanimous judicial review decision by the courts is an important step in achieving economic justice for women working in the health care sector,” said Jerry Dias, Unifor National President. “This ruling serves as a reality check to nursing home employers who have been unwilling to adopt pay equity methods. Women must be paid the same as men and will use every resource they have to achieve pay equity.”
The case arises over a dispute between ONA, the SEIU and the participating Nursing Homes about what steps the nursing homes must take in order to maintain pay equity in their workplaces. Women who make up the majority of the staff in nursing homes do not have access to male comparator jobs within their workplaces with which to conduct the pay equity analysis.
The Pay Equity Act recommends in cases where male comparators are absent, employers should use the proxy method in determining pay equity. The Ontario Pay Equity Commission explains the proxy method, “allows organizations in the broader public sector, which have mostly female job classes, to obtain and apply pay equity information from another public sector organization.”
“Women know that feminized work is paid less than traditionally male-dominated job,” said Naureen Rizvi, Ontario Regional Director. “A ruling like this one is one more tool in our belt to change this system and challenge those deeply rooted injustice that asks women to accept less.”
After the Ontario Tribunal Courts ruled that the Pay Equity Act did not require nursing homes to use the proxy method, ONA and SEIU teamed up with the Pay Equity Coalition to file a judicial review.
The unions and the Pay Equity Coalition argued that the tribunal’s interpretation of the Pay Equity Act was unreasonable and was in contravention of Charter. The Court went on to find that the manner in which the Tribunal interpreted the Pay Equity Act failed to take into account Charter values and was therefore unreasonable and ought to be overturned. The court further found that employers use proxy comparators from the date that the pay equity gap alleged to have re-emerged.