Ruling is an important win for working women in female-dominated workplaces, says union's president
Canada’s highest court has dismissed an application for appeal by Ontario’s attorney general and several for-profit nursing homes, concluding a 15-year-long litigation in pursuit of pay equity rights for registered nurses working in private nursing homes.
With the Supreme Court of Canada’s dismissal of the appeal on Oct. 14, the Ontario Court of Appeal’s judgment in Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148 stands and can now be implemented.
“We have never backed down on this case, and our persistence and energy to fight for pay equity have paid off,” said Vicki McKenna, a registered nurse and the association’s president, in a news release.
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The Ontario Court of Appeal had found that registered nurses in for-profit nursing homes have the right to be compared to the Homes for the Aged nurses and to a male comparator for pay equity maintenance.
The upholding of the appellate court’s ruling will benefit not only ONA members but “all working women in female-dominated workplaces in the public sector [who] will see that their work is valued and receive the compensation that they are entitled to. This decision will greatly improve workers’ wages in the sector, which can be helpful with recruitment and retention efforts,” McKenna said.
As the Ontario Court of Appeal decision outlined, the province’s Pay Equity Act seeks to redress systemic gender discrimination in compensation for those in female job classes. The legislation uses three comparison methods to establish pay equity, which all entail a comparison between male and female job classes.
Under the proxy method in the Pay Equity Act, public-sector organizations with no male job classes are able to access a male comparator’s wage rates from another public-sector organization that has already achieved pay equity. In this case, the proxy employer for nursing homes is the municipal homes for the aged. Nursing homes are predominantly female workplaces with no male job classes available for direct comparison.
The Ontario Court of Appeal found that the Pay Equity Hearings Tribunal’s decision -- which held that it was possible to maintain pay equity without continuing to resort to the compensation practices in the proxy establishment -- was unreasonable and ignored the legislation’s purpose, scheme and plain wording.
The appellate court said that nothing in the legislation justified eliminating a male comparator for maintaining pay equity in establishments where the proxy method was used to establish it. The appellate court affirmed the Divisional Court’s decision to remit the matter to the tribunal, which was tasked with determining the procedures for ensuring that the employees who established pay equity via the proxy method could have continued access to male comparators to maintain pay equity.
The Ford government “pursued every legal avenue possible to quash our members’ right to gender equality and pay equity,” McKenna said in the release, adding that the parties could have saved much time and money if the government had conceded several years ago.
The Ontario Nurses’ Association represents over 68,000 registered nurses and health-care professionals, and 18,000 nursing student affiliates who deliver care in hospitals, long-term care facilities, public health, the community, clinics and industry.