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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Equality rights - Equal benefit of the law

Thursday, May 10, 2018 @ 3:15 PM  

Appeal by the Attorney General of Quebec (Quebec) from a judgment of the Quebec Court of Appeal affirming in part the decision of the Superior Court and declaring ss. 76.3, 76.5 and 103.1 para. 2 of the Pay Equity Act (Act) breached s. 15 of the Canadian Charter of Rights and Freedoms (Charter) and were therefore unconstitutional. In their cross-appeal, the unions sought to have additional provisions declared unconstitutional. Quebec argued there was no breach of s. 15, or alternatively, that such violation would be justified under s. 1 of the Charter. The trial judge held that the denial of retroactive payments for pay inequities that emerged in the period between audits led to significant financial losses for women and unduly perpetuated pay inequity. He also concluded s. 76.3 of the Act breached s. 15, because employers were not required to include the date of the changes in the audit posting, and therefore employees could not know when adjustments in compensation should start. The Court of Appeal upheld the judgement but added that the violation was not minimal nor proportionate to the Act’s objective of eradicating pay inequities.

HELD: Appeal and cross-appeal dismissed. The Court proceeded with the two-stages analysis developed in Andrews for s. 15. The first stage required the Court to determine the grounds of the distinction, while the second required consideration of its impact. The Act targeted women in redressing the pay discrimination they suffered. The impugned provisions therefore drew distinctions based on sex, both on their face and in their impact. The employer’s obligation to address inequity only after the audit posting only perpetuated the disadvantage of women. Five years could go by between audits. Section 76.3 denied employees and unions the information they needed to challenge decisions employers made as a result of pay equity audits. Without information about when pay inequities emerged, employees were deprived of the evidentiary foundation for showing bad faith by the employer, which was the only route to obtaining retroactive compensation. Even if the Act did not create discrimination, it breached s. 15 because it perpetuated a historic disadvantage for a protected group. The impairment was not minimal as Quebec provided no evidence it had engaged in any meaningful effort to enforce compliance by the employers who had not adopted pay equity plans or taken the steps towards achieving and maintaining pay equity required by the former provisions. The unions did not show that the trial judge made a reviewable error in his assessment of the questions submitted for cross-appeal.

Québec (Attorney General) v. Alliance du personnel professionel et technique de la santé et des services sociaux, [2018] S.C.J. No. 17, 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-May72018012SCC