by Paula Määttä

III. Canada

D. Supervision and enforcement of the equal pay principle

1. The different methods of enforcement

In Ontario any employer, employee or bargaining agent may file a complaint alleging that there has been a contravention of the Equal Pay Act, regulations or an order of the Pay Equity Commission. In addition to individual action, class action is also possible in Canada. Any employee or bargaining agent may also file a complaint that a pay equity plan is not being implemented according to its terms, or that it is not appropriate for the female job class to which the employee belongs due to changed circumstances within the establishment. (CCH Canadian Limited 1995, p. 439.)

The Pay Equity Commission has two parts: the Pay Equity Office (Review Services) and the Pay Equity Hearings Tribunal. When the Pay Equity Commission receives a complaint, a review officer in the Pay Equity Office will investigate and attempt to effect a settlement. If a violation has occurred, the review officer may order the employer or bargaining agent to take the necessary remedial action. (CCH Canadian Limited 1995, p. 439.)

If the matter is not settled, or a request is made for an appeal from an initial decision, the case then proceeds to the Commission's Hearings Tribunal for a full hearing. The parties to a hearing before the Tribunal are the employer, the complainant and the bargaining agent or group of employees to whom the plan relates if there is no bargaining agent. The employees may appoint an agent to act on their behalf and may, after advising the Tribunal in writing of their wish to remain anonymous, have the agent be a party to the hearing rather than themselves. (CCH Canadian Limited 1995, p. 441.) Approximately 450 applications were filed with the Tribunal during the period January 1989 to June 1993.

The Manitoba Pay Equity Act gives the power to settle pay equity disputes to the arbitration procedures available in the provincial labour legislation for resolving disagreements arising during collective bargaining. The Act requires that the parties negotiating the civil service pay equity plan identify the job classes and choose a gender-neutral job evaluation scheme. Agreements must be filed with the Executive Director of the Pay Equity Bureau. In the case of dispute in the negotiations, either party may direct the matter to arbitration. The civil service began their pay equity exercise in October 1985 and the broader public sector in 1986. (McDermott 1993, p. 54.)

The Prince Edward Island legislation and the Nova Scotia legislation established a Pay Equity Commission to deal with disagreements arising during the pay equity process. If no settlement is reached, the matter is referred to arbitration. In Nova Scotia the Commission settles matters when there is a failure to agree over such issues as job evaluation and the "quantum of allocation" of wage adjustments. (McDermott 1993, pp. 54-55.)

Only in the Ontario Act is there an express provision that prohibits victimisation in the form of intimidation or coercion of employees for exercising their rights under the Act. (McDermott 1993, p. 56.)

Approximately 5 800 Canadians have benefited from the final resolution of complaints under the federal equal pay legislation. Approximately $58 million has been paid to both women and men as a result of pay equity settlements. Another $317 million in employer payments have been made to 62 000 federal service employees. (Canadian Human Rights Commission 1992.)

2. The Canadian Human Rights Commission and the Human Rights Tribunal

Extensive legislative provision has been made to deal with complaints of discriminatory practices. The Canadian Human Rights Commission may, at any stage after a complaint is filed, ask the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal to inquire into the complaint. There is a right of appeal against any decision or order made by a Tribunal, so long as the right is exercised within 30 days after the decision or order is made. (CCH Canadian Limited 1995, p. 417.)

An order of the Tribunal is enforceable as an order of the Federal Court of Canada. Failure to comply with the terms of settlement of a complaint or obstruction of the Tribunal is an offence for which the penalty, in the case of an employer, association or an employer organization, is a fine not exceeding $50 000, and in any other case, is a fine not exceeding $5 000. (CCH Canadian Limited 1995, pp. 417-418.)

For period 1991 to 1993, the Commission settled seven equal pay complaints totalling $324 566 in payments; five complaints were settled by the parties themselves, and two complaints were settled through conciliation. Five of these complaints were from individuals, and two were from groups.

The Human Rights Commission issued the revised Equal Wage Guidelines in 1986, defining how it would handle complaints of wage discrimination within the federal jurisdiction and setting out guidance for employers in respect to achieving equal pay. The Commission has proposed the reform of the equal pay legislation which would allow for the introduction of a regulatory pay equity model placing responsibility for action on employers with more than 100 employees and requiring employers to design a pay equity plan. The proposal also includes other measures to advance enforcement, including the possibility of Commission-initiated complaints, new monitoring and inspection procedures, and fines for non-compliance. (ILO, 19-23 Nov 1990, pp. 35-36.)