Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish

Paramedics working for Oneida Nation of the Thames EMS will not be subject to Ontario’s strict caps for increases in salary and compensation. In a recent arbitration for the Union’s first collective agreement, arbitrator John McNamee ruled that the paramedics employed by Oneida Nation of the Thames EMS are not subject to Bill 124, Ontario’s public sector wage restraint legislation. Had they been subject to Bill 124, it would have resulted in the Oneida Nation of the Thames EMS workers being paid less than other paramedics. The arbitrator reasoned that paying paramedics working in an Indigenous community less than other Ontario paramedics would be discriminatory.

Bill 124 became law in Ontario in November 2019 and imposed caps of 1% on increases—a rate lower than inflation—to compensation for a wide range of public sector workers. A coalition of unions is challenging the legislation in court. Bill 124 exempts Indigenous communities and employers controlled by Indigenous communities from the legislation. This was the first reported decision on the exemptions for Indigenous communities, as the paramedics at Oneida Nation of the Thames EMS sought increases of over 1%.

The EMS is fully funded by the province through an agreement between the Government of Ontario and the Oneida Nation. The EMS operates on the Oneida Settlement, land purchased by a group of Oneida who moved to Ontario from New York State in the 1840s. The Oneida Nation of the Thames has 2172 residents and 6270 members. Because the land was purchased by the Oneida and not “reserved” by the government, it is not a reserve. However, it has been treated by the Canadian government as a reserve.

The employer argued that Bill 124 applied because the Oneida Nation of the Thames EMS is a distinct entity that employs the paramedics; they are not employed by the Oneida Nation itself. It further argued that the ambulance service is not, itself, an Indigenous community and so it should be subject to the legislation.

The arbitrator rejected the employer’s argument. He found that, with the “extremely broad” definition of Indigenous employers and the fact that majority of the EMS’ members are chosen by the Oneida Nation, the legislation clearly did not apply. Further, he reasoned that this situation was exactly what the exemption was created for—that is, services funded by Ontario but carried on by an Indigenous community.

The arbitrator accepted that Ontario’s financial condition is “not at all healthy” but did not believe that this, nor the stresses of COVID-19, meant giving a reasonable award to these 18 employees, would “strain the government’s finances to the breaking point.” While COVID-19 did “immeasurably” worsen Ontario’s financial condition, he added that it also poses serious health hazards to the employees as paramedics.

The arbitrator took notice of the social context of the collective agreement, that Indigenous peoples have “not been well-served by the country as a whole, and have struggled to maintain their identity and culture in a society which has, by and large, treated them as irrelevant.” For this reason, creating EMS services by and for Indigenous people, staffed mostly by Indigenous people, is clearly a good thing. Further, any idea that employees of Indigenous communities should be paid less than EMS employees that work elsewhere is “in and of itself, discriminatory.”

As the fight against Bill 124 goes through the courts, this decision is an encouraging sign that arbitrators will not take a narrow approach to the exemptions. It is also a strong statement on the necessity for pay equity for Indigenous workers.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]