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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Reasonable limits on Charter rights - Equality rights - Discrimination, what constitutes

Thursday, May 10, 2018 @ 2:06 PM  

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Appeal from a judgment of the Quebec Court of Appeal affirming a decision that the delayed access to pay equity resulting from s. 38 of the Pay Equity Act (Act) did not violate s. 15 of the Canadian Charter of Rights and Freedoms (Charter). The issue in this appeal was whether Quebec’s approach to implementing pay equity in workplaces without male comparator job classifications violated the equality rights protected by s. 15 of the Charter. The complaint was not with Quebec’s proposed methodology, but with the six-year legislated delay in implementation. At the time the Act came into force, there was no methodology for assessing pay equity adjustments where there was no male comparator. Regulatory authority was therefore given to the Pay Equity Commission under s. 114 to conduct the necessary research and to establish a methodology for identifying the appropriate male comparators. Access to pay equity under the Act for women in workplaces without male comparators was delayed, in accordance with s. 38, by two years beyond the length of time it took to enact a regulation under s. 114. By this time, almost six years had passed since women in workplaces that had male comparators first gained access to pay equity. This six-year legislatively delayed access to pay equity resulting from s. 38 of the Act was challenged by several unions, which argued that it amounted to a breach of s. 15(1) of the Charter for women in workplaces without male comparators. The trial judge found that the delay did not violate s. 15. In his view, a separate timeline did not engage s. 15 because the delayed access was not based on sex, but rather on the absence of a male comparator. The Court of Appeal of Quebec dismissed the appeal.

HELD: Appeal dismissed. Pay equity legislation, including the Act at issue here, drew a distinction based on sex in targeting systemic pay discrimination against women. The specific provisions of the Act that targeted particular groups of women based on where they worked, such as s. 38, also necessarily drew a distinction based on sex. The relevant distinction created by s. 38 of the Act was between male employees and underpaid female employees, whether or not those male employees were in the same workplace. The trial judge’s approach erased the sex-based character of the legislative provisions and obscured the fact that the claimants disproportionately suffered an adverse impact because they were women. The discriminatory impact of the delay was clear. The women targeted for the delay created by s. 38 (those in workplaces with no male comparators), suffered the effects of pay discrimination, without a remedy, for the period of the delay, in this case six years. The fact that the legislation did not create pay discrimination was irrelevant. The legislature chose to act to address pay discrimination against women but denied access by delaying it for a group of women, leaving them, in comparison to male workers, paid less for longer. The impact of the delay created by s. 38 reinforced and perpetuated the historic economic disadvantage experienced by women in workplaces without male comparators, amounting to a prima facie breach of s. 15(1) of the Charter. Section 15(2) had no application to this case. Governments enacting multi-faceted remedial regimes to protect constitutional rights should be given some degree of latitude to accomplish the objectives sought through these initiatives. The record supported the conclusion that Quebec was not unreasonable in the steps it took to keep the delay within reasonable bounds. The delay was serious and regrettable but had the long-term benefit of resulting in the Act’s meaningful ability to address pay discrimination for a previously excluded group of female employees. The prima facie breach was therefore justified under s. 1 of the Charter.

Centrale des syndicats du Québec v. Quebec (Attorney General), [2018] S.C.J. No. 18, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ. May 10, 2018. Digest No. TLD-May72018011SCC