Nurses employed by the Canada Pension Plan finally achieve equal pay
After years of litigation, the government finally agrees to settle equal pay claim of nurses employed by the Canada Pension Plan
In a decade-long equal pay for equal work claim, nurses employed by the Canada Pension Plan have finally succeeded in their claim that they are entitled to the same rate of pay as doctors who perform the same job.
In 2004, Ruth Walden filed a equal pay for equal work complaint with the Canadian Human Rights Commission. She alleged that the Government of Canada was discriminating against nurses, most of whom were female, who worked for the Canada Pension Plan as “Medical Adjudicators”. Their main job function was to assess applications for CPP disability benefits. The government also employed physicians, most of whom were male, as “Medical Advisors”. Their main job function was the same – to assess applications for CPP disability benefits.
Even though the core function of both positions was the same and both positions required the application of professional knowledge and expertise in determining applicants’ eligibility for benefits, the doctors were classified as medical professionals (and compensated accordingly) while the nurses were classified as program managers/administrators and paid significantly less.
The Government of Canada could not explain why a CPP doctor was considered to be practicing medicine when he made a determination of disability, but a CPP nurse was considered to be delivering a program when she made the same determination. In a 2007 decision, the Canadian Human Rights Tribunal found that the Government’s refusal to recognize the professional nature of the work performed by Medical Adjudicators in a manner proportionate to the professional recognition accorded to the work of Medical Advisors amounted to a discriminatory practice within the meaning of ss. 7 and 10 of the Canadian Human Rights Act. The decision was upheld by the Federal Court.
The Tribunal subsequently ordered the Government to re-classify the nurses. However, it concluded that the evidence filed by the complainants in support of a claim for lost wages was not sufficient. It therefore did not order compensation. The Human Rights Commission sought judicial review of that aspect of the Tribunal’s decision.
The Federal Court’s decision on compensation
In November 2010, the Federal Court set aside the compensation decision. It held that the Tribunal was obliged to assess the lost wages on the material before it, or refer the issue back to the parties to prepare better evidence.
The Court referred the matter back to a new panel of the Tribunal for a redetermination of the lost wages. The Government appealed the decision, but the Federal Court of Appeal dismissed the appeal.
Meanwhile, the re-classification of the nurses brought them within the jurisdiction of a new bargaining agent, the Professional Institute of the Public Service of Canada (PIPSC). PIPSC retained Peter Engelmann to ensure that the nurses would receive the lost wages they deserved. PIPSC was granted leave to intervene in the Tribunal’s new hearing on compensation, over the Government’s objections.
In the proceedings before the Tribunal, PIPSC ensured that the Government made full disclosure of job data and other helpful background evidence from 1978 to the present. It also made sure that the comparator for calculating the nurses’ wage loss was the Medical Advisors, and not other nurses and/or other public servants, as the Government was now arguing. PIPSC also brought a motion seeking to ensure that hundreds of other Medical Adjudicators, who were not complainants in the litigation, would also receive compensation for the discrimination they had faced.
Perhaps seeing the writing on the wall, the Government entered into a settlement with the complainants in mid-June 2012. The settlement was approved by the Tribunal on July 3, 2012.
On an individual basis, this may be the largest settlement involving a discrimination complaint by a group of federal employees:
Nurses who worked at least six months for the CPP between 1978 and 1989 will receive a lump-sum payment of $20,000. Those who were employed between 1989 and 1999 will get a further $40,000 lump sum. And nurses who worked for the CPP from 1999 to the present will get an additional $16,500 for every year of service.
As well, every nurse will receive $2,000 for pain and suffering. That’s over and above the $2.3 million the tribunal awarded the nurses for pain and suffering last fall.
The settlement covered all current and former Medical Adjudicators who work or worked for the CPP Disability Program between March 1, 1978 and September 30, 2011. Current or former Medical Adjudicators who did not sign on as complainants in the Walden litigation had until December 31, 2013 to advise Treasury Board of their claim.