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In the Tribunal’s view, to do otherwise would be inconsistent with the principle that each employer is responsible for ensuring that its own compensation practices are free from gender discrimination. Instead, the Tribunal held that in the case of proxy plans, maintenance does not require the monitoring of changes in compensation or value in the proxy establishment. However, the Tribunal rejected the Unions’ position relating to the ongoing use of the proxy method. The Tribunal agreed with the Unions that the Act requires employers to maintain pay equity and that maintenance requires on-going monitoring of changes in compensation and the value of the job class. The Unions brought an application to the Pay Equity Hearings Tribunal (the “Tribunal”) claiming that the Act requires pay equity to be maintained using the proxy method on an ongoing basis. The Unions believed that the compensation of the employees at the Municipal Homes was higher because of their ongoing access to direct male comparators. This position was based on wage gaps that re-emerged between employees of the PNH and those of the Municipal Homes that did comparable work. The Unions claimed that the PNH failed to maintain pay equity in the years following 2005.

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The issue then became how to maintain pay equity.

The result was an agreement between the Unions and the PNH to pay increases and an implementation schedule that ultimately achieved pay equity in 2005. Through the proxy method the health care professionals represented by the Unions were compared to the health care aides at the Municipal Homes. These workers had already established pay equity by direct comparison to a male job class.

The health care aides working at Municipal Homes were designated as the analogous female job class. The proxy employer was the Unionized Municipal Homes for the Aged Across Ontario (the “Municipal Homes”). This proxy method was used in 1995 when the Ontario Nurses’ Association and the Service Employees International Union (collectively, the “Unions”) negotiated with the operators of nursing homes (the “Participating Nursing Homes – PNH”) to develop a pay equity plan that would apply to health professionals working across Ontario’s nursing home sector. The proxy method permits a comparison between the female job class seeking pay equity, and an analogous female job class from another establishment where pay equity has been achieved through the use of a direct male comparator. In predominantly female workplaces, where there are no male job classes available for direct comparison, the Act sets out a “proxy” method. In order to do this, the Act provides mechanisms to compare female and male job classes.

This decision is very significant as it represents a departure from the concept that proxy comparators were necessary to establish pay equity, but not to maintain it.Īs many readers of Focus will know, the Ontario Pay Equity Act (the “ Act”) is designed to redress systemic gender discrimination in job compensation. Ontario (March, 2021) Ontario’s top court held that maintaining pay equity in female job classes with no direct male comparators requires ongoing comparisons to “proxy” male job classes. A recent decision of the Ontario Court of Appeal represents the latest development in a long-standing issue regarding how to maintain pay equity in predominantly female workplaces.

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