In Peel (Regional Municipality) v CUPE, Local 966, (2023)354 L.A.C. (4^th), the Union sought a preliminary order directing the Employer to disclose gender incumbency data.  The Employer had refused to provide the data, arguing that the Pay Equity Act is silent as to what pay equity maintenance duties include.  The Employer further argued that, once pay equity is achieved, the obligation to maintain pay equity is the sole responsibility of the Employer and that the Union is only entitled to information to the extent necessary to demonstrate that pay equity has been achieved and maintained.

CUPE argued that, while the Pay Equity Act is silent on the requirement to disclose pay equity information to a Union, the jurisprudence affirms the Employer’s obligation to disclose pay equity information in the context of the duty to bargain in good faith as well as the pay equity maintenance provisions.  The Union specifically relied on section 7 of the Act (which prohibits an employer or bargaining agent from bargaining for or agreeing to compensation practices that, if adopted, would cause a contravention of the Act) and argued that, because section 14.1 requires an employer to negotiate with the bargaining agent where there is a changed circumstance (e.g., a change in the gender predominance of comparator jobs), the Employer’s refusal to disclose the data potentially prevented the Union from meeting its own obligations to members with regard to pay equity maintenance.

Arbitrator Hayes agreed with the Union and directed the Employer to provide the Union with the requested gender incumbency data for all job classifications listed in the parties’ Pay Equity Maintenance Summary.  If you have questions about pay equity, please contact Samantha Lamb at slamb@jewittmcluckie.ca.

In L.N. v Ray Daniel Salon & Spa, 2024 HRTO 179 (CanLII), the Tribunal dealt with an application alleging discrimination in employment based on sex, sexual harassment, sexual solicitations or advances, citizenship and reprisal.  The applicant was a refugee who had fled Iran after experiencing intimate partner violence and recently arrived in Canada.  She was hired by the respondent who spoke Farsi, the applicant’s primary language.  The Tribunal found that, during the course of her employment, the respondent engaged in repeated sexual harassment of the applicant, including three incidents of egregious sexual assaults and physical assault.  He also took advantage of her precarious immigration status and paid her well below the minimum wage because she lacked permanent citizenship and threatened to report her to the police when she tried to enforce her rights by asking to be paid minimum wage.  The Tribunal also found that the respondent engaged in reprisal against her when he filed a lawsuit against the applicant for bringing forward what he described as a “false claim” to the Tribunal.  In total, the Tribunal ordered the respondent to pay $180,000 in damages for injury to the applicant’s dignity, feelings and self-respect which is reportedly the second highest damages award in the Tribunal’s history.  In addition, the Tribunal ordered mandatory human rights training for the managerial staff in the workplace and required the decision to be posted in the workplace.  The Toronto Star has reported that the respondent intends to appeal the decision.