Caressant Care Nursing v. LDSWU, (2005) 197 O.A.C. 238 (DC)

• Judge: Lane, Matlow and Molloy, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 12, 2005
• Jurisdiction: Ontario
• Citations: (2005), 197 O.A.C. 238 (DC)

Caressant Care Nursing v. LDSWU (2005), 197 O.A.C. 238 (DC)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. MY.010

Caressant Care Nursing Home of Canada Limited (applicant) v. London and District Service Workers' Union, Local 220 and Pay Equity Hearings Tribunal (respondents)

(528/02)

Indexed As: Caressant Care Nursing Home of Canada Ltd. v. London and District Service Workers' Union, Local 220 et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Lane, Matlow and Molloy, JJ.

April 12, 2005.

Summary:

The applicant corporation owned a nursing home and an adjacent retirement home. The nursing home was licensed under the Nurs­ing Home Act (Ont.), received government funding and was subject to strict government scrutiny and controls. The retirement home was strictly a private business operation. At issue, was whether the retirement home was, like the nursing home, subject to the "proxy method" of wage comparison for wage adjustment purposes under the Pay Equity Act. The answer depended on whether the applicant was, for its entire operation, a public sector employer as defined under the Pay Equity Act.

The Pay Equity Hearings tribunal decided that the applicant was a public sector employer under the Act in respect of its entire operation. Hence, the retirement home was subject to the "proxy method". The applicant sought judicial review.

The Ontario Divisional Court allowed the application. The applicant was not a public service employer in respect of the retirement home. The "proxy method" did not apply. The court remitted the matter to a differently constituted panel and directed it to interpret the term "public sector employer" in accord­ance with the court's reasons.

Civil Rights - Topic 5704

Equality and protection of the law - Equal pay - Public sector employer - The Pay Equity Act (Ont.) included, in its definition of "public sector employer", a corporation that operated a licensed nursing home - The Pay Equity Hearings Tribunal deter­mined that a strict interpretation of the term "public sector employer" was appro­priate and that once an employer was found to be a public sector employer in any aspect of its business, it was a public sector employer for all purposes under the Act and with respect to all of its employees in the relevant geographic boundaries - Consequently, the Tribunal ruled that the applicant employer was a public sector employer, not only for its licensed, subsidized nursing home, but also for its adjacent privately run and non regulated retirement home - Hence, the "proxy method" applied for wage assess­ment purposes under the Act - The Ontario Divisional Court, applying the standard of reasonableness simpliciter, quashed the decision - The result was absurd where: (1) businesses plainly not a part of the public sector, such as a pizza parlour owned by a nursing home owner, could fall under the public sector aspects of the Act; (2) it could be unfair for the employer; and (3) Hansard excerpts and Committee com­ments indicated that the "proxy method" was never intended to apply to the private sector - See paragraphs 47, 55 to 66, 73 to 89.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See Civil Rights - Topic 5704 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - In a reconsideration decision, the Pay Equity Hearings Tribunal (Ont.) ruled on whether a regulatory amendment had retrospective effect - The Tribunal otherwise affirmed that the corporate appli­cant, who owned a licensed, subsidized nursing home and an adjacent privately and non regulated retirement home, was a public sector employer for its entire oper­ation - The Ontario Divisional Court ruled that the Tribunal was required to be correct on the retrospectivity issue as it was a pure question of law - On the other issues, the Tribunal was exercising discretion with respect to issues already before it in the initial decision - The court held that it ought not to interfere with that discretion unless it was patently unreasonable - See paragraphs 24, 25 and 48.

Statutes - Topic 1207

Interpretation - Construction where mean­ing is plain - Where plain meaning absurd or unjust - [See Civil Rights - Topic 5704 ].

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - [See Civil Rights - Topic 5704 ].

Statutes - Topic 1648

Interpretation - Extrinsic aids - Legislative history - Legislative committee reports and minutes - [See Civil Rights - Topic 5704 ].

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - The Pay Equity Act (Ont.) included, in its definition of "public sector employer", a corporation that oper­ated a licensed nur­sing home - The Pay Equity Hearings Tribunal, in an initial decision, ruled that the corporate applicant, who owned a licensed, subsidized nursing home and an adjacent privately run and non regulated retirement home, was a public sector employer for its entire oper­ation - After this decision, a regulatory amendment added the following to the licensed nursing home aspect of the defini­tion: "for greater certainty, only in respect of nursing home beds" subsidized by the Province - In a reconsideration decision, in which it affirmed that the applicant was a public sector employer, the Tribunal ruled that the amendment did not have retrospec­tive effect and therefore had no bearing on its decision - The Ontario Divisional Court upheld this ruling as correct - See para­graphs 24, 65 to 67, 69 to 72.

Words and Phrases

Public sector employer - The Ontario Divisional Court discussed what constituted a public sector employer under the Pay Equity Act (Ont.) - See paragraphs 68 to 91.

Cases Noticed:

Hilton Works, Re (No. 3) (1994), 5 P.E.R. 34 (Ont. Trib.), refd to. [para. 18].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 26].

Haldimand-Norfolk Regional Board of Commissioners of Police et al. v. Ontario Nurses' Association et al. (1989), 36 O.A.C. 276 (Div. Ct.), affd. (1990), 41 O.A.C. 148 (C.A.), refd to. [para. 27].

Board of Education of Wentworth County et al. v. Wentworth Women Teachers' Association et al. (1991), 53 O.A.C. 325 (Div. Ct.), refd to. [para. 27].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 28].

Glengarry Memorial Hospital v. Pay Equity Hearings Tribunal (Ont.) et al. (1995), 80 O.A.C. 261; 23 O.R.(3d) 43 (C.A.), consd. [para. 29].

Ontario Nurses' Association v. Pay Equity Hearings Tribunal (Ont.) et al. - see Glengarry Memorial Hospital v. Pay Equity Hearings Tribunal (Ont.) et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 33].

Queen Street Mental Health Centre Employees et al. v. Ontario (Manage­ment Board Secretariat) et al., [2001] O.A.C. Uned. 163 (Div. Ct.), refd to. [para. 34].

General Health Services Inc. et al. v. Buchanan et al. (2004), 185 O.A.C. 121 (Div. Ct.), refd to. [para. 34].

Circle of Life Health Services v. Buchanan - see General Health Services Inc. et al. v. Buchanan et al.

Wellington (County) v. Butler et al. (2001), 152 O.A.C. 4; 56 O.R.(3d) 271 (Div. Ct.), consd. [para. 35].

Bucyrus Blades of Canada Ltd. v. McKinley et al. (2005), 194 O.A.C. 160 (Div. Ct.), consd. [para. 36].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201, consd. [para. 38].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al. (2003), 304 N.R. 1; 225 D.L.R.(4th) 206 (S.C.C.), consd. [para. 42].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321, consd. [para. 53].

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193, consd. [para. 53].

Canadian National Railway v. Canadian Human Rights Commission - see Action Travail des Femmes v. Canadian Nation­al Railway Co. et al.

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298; 90 D.L.R.(3d) 481, refd to. [para. 54].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, consd. [para. 56].

Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co., [1969] 1 O.R. 469 (H.C.), consd. [para. 58].

AXA Insurance v. Ahmed-Nuur et al., [2000] O.T.C. 891; 52 O.R.(3d) 70 (Sup. Ct.), refd to. [para. 60].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86; 48 D.L.R.(4th) 193, consd. [para. 61].

Quebec (Attorney General) v. Healey, [1987] 1 S.C.R. 158; 73 N.R. 288; 6 Q.A.C. 56, refd to. [para. 65].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 73].

Service Employees International Union, Local 204 et al. v. Ontario (Attorney General) (1997), 42 O.T.C. 203; 35 O.R.(3d) 508 (Gen. Div.), consd. [para. 81].

Statutes Noticed:

Interpretation Act, R.S.O. 1990, c. I-11, sect. 10 [para. 50]; sect. 17 [para. 66].

Pay Equity Act, R.S.O. 1990, c. P-7, sect. 1(1) [para. 12]; sect. 30(1) [para. 13]; sect. 36(2) [para. 70]; Schedule, Appen­dix, sect. 1(b) [para. 10].

Pay Equity Act Regulations (Ont.), Reg. 37/02, generally [paras. 23, 30].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 87 [para. 51].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), pp. 85 [para. 59]; 86 [paras. 59, 61].

Ontario, Pay Equity Com­mission Report (January 5, 1989), generally [para. 81].

Ontario, Pay Equity Commission Report on Options relating to the Achieve­ment of Pay Equity in Sectors of the Economy which are Predominantly Female (Octo­ber 18, 1989), pp. 54, 76 [para. 82].

Ontario, Legislative Assembly, Standing Committee on Pay Equity in Debates, No. 86 (November 26, 1992), p. 3533 [para. 83].

Ontario, Legislative Assembly, Standing Committee on Pay Equity in Debates, No. 18 (May 12, 1993), p. 732 [para. 84].

Ontario, Legislative Assembly, Standing Committee on Pay Equity in Debates, No. 28 (June 7, 1993), p. 1221 [para. 84].

Counsel:

David M. Golden, Irv Kleiner and Lisa Corrente, for the applicant;

Cathy Lace, for the respondent, Union;

Leslie A. Leroux, for the respondent, Tri­bunal.

This application was heard on February 2 and 4, 2005, by Lane, Matlow and Molloy, JJ., of the Ontario Divisional Court.

The decision of the Divisional Court was delivered by Molloy, J., and released on April 12, 2005.