Centrale des syndicats du Québec v. Quebec (Attorney General)

Centrale des syndicats du Québec v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
2018-05-10
Neutral citation
2018 SCC 18
Report
[2018] 1 SCR 522
Case number
37002
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Quebec
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522
Appeal Heard: October 31, 2017 Judgment Rendered: May 10, 2018 Docket: 37002
Between:
Centrale des syndicats du Québec et al.
Appellants
and
Attorney General of Quebec
Respondent
And Between:
Confederation of National Trade Unions (CNTU) et al.
Appellants
and
Attorney General of Quebec
Respondent
- and -
Attorney General of Ontario et al.
Interveners
Official English Translation: Reasons of Côté J.
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons: (paras. 1 to 56)
Abella J. (Moldaver, Karakatsanis and Gascon JJ. concurring)
Reasons: (paras. 57 to 153)
Côté J. (Wagner, Brown and Rowe JJ. concurring)
Reasons Dissenting in the Result: (paras. 154 to 159)
McLachlin C.J.
Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522
Centrale des syndicats du Québec,
Fédération des intervenantes en petite enfance
du Québec (FIPEQ‑CSQ), Le syndicat des intervenantes
en petite enfance de Montréal (SIPEM‑CSQ),
Le syndicat des intervenantes en petite enfance
de Québec (SIPEQ‑CSQ), Le syndicat des intervenantes
en petite enfance de l’Estrie (SIPEE‑CSQ), Francine Joly,
Nathalie Fillion, Louise Fréchette, Fédération du personnel
de soutien de l’enseignement supérieur (FPSES) (CSQ),
Syndicat des interprètes professionnels du Sivet (CSQ),
Chantal Bousquet and Yannick François Appellants
v.
Attorney General of Quebec Respondent
‑ and ‑
Confederation of National Trade Unions (CNTU),
Fédération de la santé et des services sociaux,
Syndicat des travailleuses et travailleurs des CPE
de la Montérégie, Syndicat des travailleuses des CPE
de Montréal et de Laval, France Laniel,
Ginette Lavoie and Danielle Paré Appellants
v.
Attorney General of Quebec Respondent
and
Attorney General of Ontario, Equal Pay Coalition,
Women’s Legal Education and Action Fund and
New Brunswick Coalition for Pay Equity Interveners
Indexed as: Centrale des syndicats du Québec v. Quebec (Attorney General)
2018 SCC 18
File No.: 37002.
2017: October 31; 2018: May 10.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal of quebec
Constitutional law — Charter of Rights — Right to equality — Discrimination based on sex — Pay equity — Legislative scheme enacted to address systemic wage discrimination suffered by employees, essentially women, occupying positions in predominantly female job classes — Lack of methodology for assessing pay equity adjustment for employees in workplaces without predominantly male job class comparators resulting in delayed access to pay equity without retroactive payment as opposed to employees in workplace with predominantly male job classes comparators — Whether six‑year delay in access to pay equity resulting from s. 38 of Pay Equity Act for women employed in workplaces without male comparators violates s. 15 of Charter — If so, whether infringement justifiable — Pay Equity Act, CQLR, c. E‑12.001, s. 38 — Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
In Quebec, the right to equal pay for work of equal value was adopted in 1975 through s. 19 of the Charter of Human Rights and Freedoms. The complaints‑based regime by which female workers had access to s. 19 proved ill‑suited to address systemic discrimination and female workers were excluded from access to pay equity where there were no male comparators. The Pay Equity Act was adopted in 1996 to provide a remedy. It recognized that systemic wage discrimination exists in the workforce whether or not there are male comparators in a particular workplace. As a result, all employers with 10 or more employees were to conduct a pay equity exercise to identify and redress pay inequity through adjustments in compensation or the creation of a pay equity plan, depending on the size of the enterprise.
At the time the Act came into force in 1997, there was, however, 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. Under s. 114, a regulation could not be passed until workplaces with male comparators had completed their first pay equity exercise on or before November 21, 2001. The Pay Equity Commission did not settle on a methodology until 2003 and the Regulation was not promulgated until May 5, 2005. The two‑year grace period provided by s. 38 further postponed pay equity for workplaces without male comparators until May 5, 2007. This six‑year legislatively delayed access to pay equity resulting from s. 38 of the Act was challenged by several unions as a breach of s. 15(1) of the Canadian Charter of Rights and Freedoms for women in workplaces without male comparators.
The trial judge found that the delay did not violate s. 15(1) 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 (McLachlin C.J. dissenting in the result): The appeal should be dismissed. Section 38 of the Pay Equity Act is constitutional.
1. Per Abella J. (with McLachlin C.J. and Moldaver, Karakatsanis and Gascon JJ.): Section 38 of the Act infringes s. 15(1) of the Charter .
Per Côté J. (with Wagner, Brown and Rowe JJ.): Section 38 of the Act does not infringe s. 15(1) of the Charter . The appeal should fail at this stage of the analysis.
2. Per Abella J. (with Moldaver, Karakatsanis and Gascon JJ.): The infringement of s. 15(1) is justifiable under s. 1 of the Charter .
Per McLachlin C.J.: The infringement of s. 15(1) is not justifiable under s. 1 of the Charter .
____________________________
Per Abella, Moldaver, Karakatsanis and Gascon JJ.: Section 38 of the Pay Equity Act violates s. 15(1) of the Charter . The limitation draws a distinction on the basis of sex. All pay equity legislation demonstrably and unarguably creates distinctions based on sex because its goal is to recognize and remedy the discrimination that women have suffered in the way they are compensated in the workforce. This is systemic discrimination premised on the historic economic and social devaluation of women’s work compared to men’s work. The contrary view that the distinction created by the Act was not based on sex, but rather on the absence of male comparator groups in the enterprise, is formal equality, an approach expressly rejected by this Court in Andrews. It erases the sex‑based character of the legislative provisions and obscures the fact that the claimants disproportionately suffer an adverse impact because they are women. And the sex‑based character of the distinction drawn by s. 38 is inescapable. The two categories into which the Act sorts women — women in workplaces with male comparators and those without such comparators — expressly defined by the presence or absence of men in the workplace, are set up to address disparities in pay between men and women. Moreover, these categories single out for inferior treatment the group of women whose pay has, arguably, been most markedly impacted by their gender. So the categories set up by ss. 37 and 38 of the Act draw distinctions based on sex both on their face — that is, by their express terms — and in their impact.
The distinction is discriminatory. The women targeted for the delay suffer the effects of pay discrimination — without a remedy — for the period of the delay. The fact that the legislation did not create pay discrimination is irrelevant. The law has a discriminatory impact because it perpetuates the disadvantage of a protected group through a legislated “denial of access to remedial procedures for discrimination”. Nor does the fact that the Act was intended to help women, attenuate the fact of the breach. Purpose and intention are part of the s. 1 justification analysis. Determining whether there is a breach focuses on the impact of, not motive for, the law. And the impact is clear. Occupational segregation and low wages usually go hand in hand. There is no doubt that the claimants will experience a considerable economic impact as a result of the delay. And the very women singled out for differential and delayed access to pay equity under this scheme may be the very ones most likely to experience its effects disproportionately.
Section 15(2) has no application to this case. Section 15(2) is not a stand‑alone defence to any and all claims brought under s. 15(1) . The purpose of s. 15(2) is to save ameliorative programs from the charge of “reverse discrimination”. Reverse discrimination involves a claim from someone outside the scope of intended beneficiaries who alleges that ameliorating those beneficiaries discriminates against him or her. It stands the purpose on its head to suggest that s. 15(2) can be used to deprive the program’s intended beneficiaries of the right to challenge the program’s compliance with s. 15(1) . For the government to invoke a s. 15(2) defence, there must first be a claim by a person or group excluded from the program alleging that the exclusion is discriminatory. In this case, the complainants have been expressly included but in a manner they claim has a discriminatory impact. This is not a claim of “reverse discrimination”, it is a claim of discrimination.
The prima facie breach of s. 15(1) is however justified under s. 1 of the Charter . The pressing and substantial objective of the delay caused by s. 38 was to enact a scheme that created an effective remedy for systemic pay discrimination for women working in places where there are no male comparators. The issue was complex and required considerable research and analysis and there was scant policy experience elsewhere to draw on for inspiration. Therefore, the delay in developing and implementing a credible methodology is rationally connected to the objective of creating the possibility of an effective remedy. As to minimal impairment, where, as here, the government introduced, and gave effect to, an entirely new regime, a degree of delay is to be expected. But the government must demonstrate that, in the circumstances, it acted with reasonable diligence. The time frame must be calibrated to the nature and complexity of the issue, but it cannot be indefinite. While close to the line, the record supports the conclusion that Quebec was not unreasonable in the steps it took to keep the delay within reasonable bounds. The Pay Equity Commission in charge of administering the Act, was only created in 1996 and had to develop new strategies for implementation on multiple fronts. Although the delay was serious and regrettable, women in workplaces with no male comparators saw the creation of an effective, coherent remedy for systemic economic discrimination where none had previously existed. The ultimate advantages of Quebec’s expanded approach outweigh the harm. The proportionality test is met.
Per Wagner, Côté, Brown and Rowe JJ.: Section 38 of the Pay Equity Act is valid under s. 15(1) of the Canadian Charter of Rights and Freedoms . The distinction made in s. 38 is not based on sex, because the difference in compensation does not result from the fact that the affected employees are women. Certain of those who are meant to benefit from the Act — employees of enterprises that have no predominantly male job classes — wish to be paid in accordance with the same timetable that applies to others who are also meant to benefit from the Act — employees of enterprises that do have predominantly male job classes. An analysis of the evidence as a whole leads to the conclusion that the basis for the differential treatment affecting the employees in question lies instead in the lack of male comparators in their employers’ enterprises. It cannot be concluded that every distinction drawn by a pay equity statute is necessarily based on sex. Such a conclusion would deprive trial judges of any discretion in their assessment of the evidence and would make the first step in the s. 15(1) analysis irrelevant.
Moreover, the distinction made in s. 38 of the Act does not have a discriminatory impact. The four contextual factors identified in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 — (1) the nature of the affected interest, (2) a pre‑existing disadvantage, (3) a correspondence with actual characteristics and (4) the impact on other groups — are relevant to the determination of whether s. 38 is discriminatory.
The importance of the right at issue in this case is not in doubt. For the employees concerned, it is a question of being paid an amount that reflects the fair value of their work and receiving compensation based on a prejudice‑free evaluation that focuses on the objective value of their work. This right is all the more important because women working in enterprises with no male comparators have a significant pre‑existing disadvantage, one that is documented, is not in dispute and is in fact recognized from the outset in s. 1 of the Act. But this factor does not give rise to a presumption that a distinction is discriminatory.
Regarding the third factor, it can be seen that significant differences in compensation due to systemic gender discrimination already existed in the labour market and that these differences were maintained in the private sector. The Act and the time limits it establishes reflect the actual capacities and needs of the members of the affected group. The legislature set up a proactive scheme that, once completed, made it possible to redress differences in compensation due to systemic gender discrimination, including for employees working in enterprises with no male comparators. However, it was recognized from the outset that more time would be needed to develop an adequate method for calculating compensation adjustments. Although the Act may not be perfect, it has had an undeniably ameliorative effect on the employees in question. The decision to enact the Act quickly and to guarantee pay equity for a large number of employees working in more than 225,000 enterprises in Quebec obviously had a significant positive effect on those employees. It goes without saying that when a government develops a complex scheme such as that of pay equity legislation, it will not always be able to ameliorate the conditions of every member of a disadvantaged group at the same time and in the same way. An obligation of result cannot be imposed on the legislature in this regard, as that could cause the enactment of legislation to be postponed, to everyone’s detriment. Furthermore, the legislature was entitled to proceed by way of regulation to develop an innovative, simple and practical method for valuating differences in compensation for employers that have no predominantly male job classes. The different time limits provided for do not perpetuate prejudice or a stereotype. The impugned provision does not have a discriminatory impact, as it instead narrows the gap between these historically disadvantaged groups and the rest of society.
Given that s. 38 of the Act is valid, it is not necessary to go on to determine whether that section can be saved under s. 15(2). This silence should not be interpreted as an endorsement of Abella J.’s comments on that subject, however.
Per McLachlin C.J. (dissenting in the result): There is agreement with the majority that s. 38 of the Pay Equity Act violates s. 15(1) of the Canadian Charter of Rights and Freedoms . However, the breach cannot be justified under s. 1 of the Charter . It is questionable whether the government’s objective of ensuring employer compliance is pressing and substantial and therefore capable of justifying the breach of women’s right to equality. In any event, the infringement fails at the minimal impairment and balancing stages. The six‑year period was dictated not by the exigencies of working out what constituted equal pay in female‑dominated work‑places, where no male comparator groups were available, but in part by the government’s decision to negotiate with employers over a lengthy period in order to ensure that the scheme was one that employers would accept and with which they would comply. The government has not demonstrated that other less impairing options were not available. It has also not established that the denial of benefits to the affected and already marginalized women is proportionate to the public interest in denying them a remedy.
Cases Cited
By Abella J.
Applied: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Vriend v. Alberta, [1998] 1 S.C.R. 493; referred to: Syndicat de la fonction publique du Québec inc. v. Québec (Procureur général), [2004] R.J.Q. 524; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
By Côté J.
Applied: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; distinguished: Vriend v. Alberta, [1998] 1 S.C.R. 493; referred to: Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183.
By McLachlin C.J. (dissenting in the result)
R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Act respecting discrimination in employment, S.Q. 1964, c. 46.
Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
Charter of human rights and freedoms, CQLR, c. C‑12, s. 19.
Charter of human rights and freedoms, S.Q. 1975, c. 6, s. 19.
Equal Pay Act, R.S.B.C. 1960, c. 131.
Equal Pay Act, R.S.S. 1953, c. 265.
Female Employees Equal Pay Act, S.C. 1956, c. 38.
Female Employees Fair Remuneration Act, 1951, S.O. 1951, c. 26.
Individual’s Rights Protection Act, R.S.A. 1980, c. I‑2.
Pay Equity Act, CQLR, c. E‑12.001, ss. 1, 10, 13, 31, 34, 37, 38, 50, 71, 114.
Pay Equity Act, R.S.O. 1990, c. P.7.
Pay Equity Act, S.Q. 1996, c. 43, ss. 1, 13, 37 [am. 2009, c. 9, s. 12], 38, 71, 114.
Regulation respecting pay equity in enterprises where there are no predominantly male job classes, (2005) 137 G.O. II, 976.
Regulation respecting pay equity in enterprises where there are no predominantly male job classes, CQLR, c. E‑12.001, r. 2.
Treaties and Other International Instruments
Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (No. 100), Can. T.S. 1973 No. 37, arts. 2, 3.
Convention on the Elimination of All Forms of Discrimination against Women, Can. T.S. 1982 No. 31.
International Covenant on Economic, Social and Cultural Rights, Can. T.S. 1976 No. 46.
Authors Cited
Canada. Pay Equity Task Force. Pay Equity: A New Approach to a Fundamental Right, Final Report. Ottawa, 2004.
Canada. Royal Commission on Equality in Employment. Report of the Commission on Equality in Employment. Ottawa: Supply and Services Canada, 1984.
Chicha, Marie‑Thérèse. L’équité salariale: Mise en œuvre et enjeux, 3e éd. Cowansville, Que: Yvon Blais, 2011.
Cornish, Mary. “Closing the Global Gender Pay Gap: Securing Justice for Women’s Work” (2007), 28 Comp. Lab. L. & Pol’y J. 219.
International Labour Office. Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), General Report and observations concerning particular countries. Geneva, 2007.
Martin, Sheilah L. “Persisting Equality Implications of the ‘Bliss’ Case”, in Sheilah L. Martin and Kathleen E. Mahoney, eds., Equality and Judicial Neutrality. Toronto: Carswell, 1987.
Oelz, Martin, Shauna Olney and Manuela Tomei. Equal Pay: An introductory guide, Geneva: International Labour Organization, 2013.
Pothier, Dianne. “Equality as a Comparative Concept: Mirror, Mirror, on the Wall, What’s the Fairest of Them All?” (2006), 33 S.C.L.R. (2d) 135.
Quebec. Assemblée nationale. Commission de l’économie et du travail. “Étude du projet de règlement sur l’équité salariale dans les entreprises où il n’existe pas de catégories d’emplois à prédominance masculine”, Journal des débats de la Commission de l’économie et du travail, vol. 38, no 35, 1re sess., 37e lég., 24 novembre 2004.
Quebec. Assemblée nationale. Commission des affaires sociales. “Consultation générale sur l’avant‑projet de loi sur l’équité salariale et modifiant certaines dispositions législatives”, Journal des débats de la Commission des affaires sociales, vol. 34, no 35, 1re sess., 35e lég., 6 février 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Consultation générale sur l’avant‑projet de loi sur l’équité salariale et modifiant certaines dispositions législatives”, Journal des débats de la Commission des affaires sociales, vol. 34, no 36, 1re sess., 35e lég., 7 février 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Consultation générale sur l’avant‑projet de loi sur l’équité salariale et modifiant certaines dispositions législatives”, Journal des débats de la Commission des affaires sociales, vol. 34, no 37, 1re sess., 35e lég., 8 février 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Consultation générale sur l’avant‑projet de loi sur l’équité salariale et modifiant certaines dispositions législatives”, Journal des débats de la Commission des affaires sociales, vol. 34, no 39, 1re sess., 35e lég., 15 février 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Consultations particulières sur le projet de loi no 35 — Loi sur l’équité salariale”, Journal des débats de la Commission des affaires sociales, vol. 35, no 32, 2e sess., 35e lég., 20 août 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Consultations particulières sur le projet de loi no 35 — Loi sur l’équité salariale”, Journal des débats de la Commission des affaires sociales, vol. 35, no 33, 2e sess., 35e lég., 21 août 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Consultations particulières sur le projet de loi no 35 — Loi sur l’équité salariale”, Journal des débats de la Commission des affaires sociales, vol. 35, no 34, 2e sess., 35e lég., 22 août 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Étude détaillée du projet de loi no 35 — Loi sur l’équité salariale”, Journal des débats de la Commission des affaires sociales, vol. 35, no 45, 2e sess., 35e lég., 7 novembre 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Étude détaillée du projet de loi no 35 — Loi sur l’équité salariale”, Journal des débats de la Commission des affaires sociales, vol. 35, no 46, 2e sess., 35e lég., 12 novembre 1996.
Quebec. Assemblée nationale. Commission des affaires sociales. “Étude détaillée du projet de loi no 35 — Loi sur l’équité salariale”, Journal des débats de la Commission des affaires sociales, vol. 35, no 47, 2e sess., 35e lég., 14 novembre 1996.
Quebec. Assemblée nationale. Journal des débats de l’Assemblée nationale, vol. 35, no 56, 2e sess., 35e lég., 21 novembre 1996.
Young, Margot. “Blissed Out: Section 15 at Twenty” (2006), 33 S.C.L.R. (2d) 45.
APPEAL from a judgment of the Quebec Court of Appeal (Vézina, St‑Pierre and Émond JJ.A.), 2016 QCCA 424, [2016] AZ‑51262412, [2016] J.Q. no 1991 (QL), 2016 CarswellQue 1852 (WL Can.), affirming a decision of Yergeau J., 2014 QCCS 4197, [2014] AZ‑51105800, [2014] J.Q. no 9467 (QL), 2014 CarswellQue 9184 (WL Can.). Appeal dismissed, McLachlin C.J. dissenting in the result.
Geneviève Bailargeon Bouchard and Denis Bradet, for the appellants Centrale des syndicats du Québec, Fédération des intervenantes en petite enfance du Québec (FIPEQ‑CSQ), Le syndicat des intervenantes en petite enfance de Montréal (SIPEM‑CSQ), Le syndicat des intervenantes en petite enfance de Québec (SIPEQ‑CSQ), Le syndicat des intervenantes en petite enfance de l’Estrie (SIPEE‑CSQ), Francine Joly, Nathalie Fillion, Louise Fréchette, Fédération du personnel de soutien de l’enseignement supérieur (FPSES) (CSQ), Syndicat des interprètes professionnels du Sivet (CSQ), Chantal Bousquet and Yannick François.
Jean Mailloux and Marilyne Duquette, for the appellants the Confederation of National Trade Unions (CNTU), Fédération de la santé et des services sociaux, Syndicat des travailleuses et travailleurs des CPE de la Montérégie, Syndicat des travailleuses des CPE de Montréal et de Laval, France Laniel, Ginette Lavoie and Danielle Paré.
Patrice Claude and Caroline Renaud, for the respondent.
Courtney Harris and S. Zachary Green, for the intervener the Attorney General of Ontario.
Fay Faraday and Janet E. Borowy, for the interveners the Equal Pay Coalition, the Women’s Legal Education and Action Fund and the New Brunswick Coalition for Pay Equity.
The reasons of Abella, Moldaver, Karakatsanis and Gascon JJ. were delivered by
[1] Abella J. — The issue in this appeal is whether Quebec’s approach to implementing pay equity in workplaces without male comparator job classifications violates the equality rights protected by s. 15 of the Canadian Charter of Rights and Freedoms . The complaint is not with Quebec’s proposed methodology, but with the six-year legislated delay in implementation.
Background
[2] The first efforts to address the deep and persistent gap between women’s pay and men’s pay, referred to as “equal pay for equal work”, required employers to pay men and women the same wage for doing the same job, at the same workplace (see, e.g., Female Employees Equal Pay Act, S.C. 1956, c. 38; Equal Pay Act, R.S.B.C. 1960, c. 131; The Equal Pay Act, R.S.S. 1953, c. 265). Although this was an important first step, it failed to grapple with the systemic nature of pay discrimination. It became clear that “historical attitudes towards the role of women in society, along with stereotypical assumptions regarding women’s aspirations, preferences, capabilities, and ‘suitability’ for certain jobs, [had] contributed to occupational sex segregation in the labour market” (International Labour Office, Report of the Committee of Experts on the Application of Conventions and Recommendations (2007), at p. 271).
[3] The result was that women doing work of equal value did not receive fair pay:
Female-dominated jobs . . . are generally less paid and less valued than male-dominated jobs. The lower rates of pay discourage men from entering these jobs. As a result women are concentrated in different jobs than men. This reinforces the view that low pay results from market factors and skill requirements rather than the under-valuation of women’s jobs. Women’s skills are often overlooked, as they are regarded as “natural” female characteristics rather than acquired through experience or training.
(Martin Oelz, Shauna Olney and Manuela Tomei, Equal Pay: An introductory guide (2013), at pp. 17-18)
[4] The next responsive legislative step was a right to equal pay for work of equal value. Under this approach, methods were developed for measuring and remedying pay disparities between male-dominated jobs and female-dominated jobs within the same workplace or “establishment”. These methods were based on identifying job classes in an enterprise with similar characteristics and value, and then classifying them as male or female dominated (Final Report of the Pay Equity Task Force, Pay Equity: A New Approach to a Fundamental Right (2004), at p. 247).
[5] In Quebec, this right to equal pay for work of equal value was adopted in 1975 through s. 19 of the Charter of Human Rights and Freedoms, S.Q. 1975, c. 6 (now CQLR, c. C-12). This provision states:
19. Every employer must, without discrimination, grant equal salary or wages to the members of his personnel who perform equivalent work at the same place.
A difference in salary or wages based on experience, seniority, years of service, merit, productivity or overtime is not considered discriminatory if such criteria are common to all members of the personnel.
. . .
It allowed for comparisons in the same workplace between predominantly male job categories and predominantly female categories even though the nature of the work performed was not the same. But the complaints-based regime by which female workers had access to s. 19 proved ill-suited to address systemic discrimination.[1] Since s. 19 required male comparator groups “at the same place”, female workers were excluded from access to pay equity where there were no male comparators.
[6] Fixing this gap required a determination of how to measure pay discrimination against women who were not only in female dominated jobs, but whose workplaces contained no male dominated job with which to do a comparison. This appeal arises out of Quebec’s efforts to find — and adopt — a solution to that problem.
[7] Those efforts included two reports prepared in 1995, one by the Comité d’élaboration du projet de loi and the other by the Comité de consultation en regard à la loi proactive sur l’équité salariale.[2] The result was the Pay Equity Act, S.Q. 1996, c. 43 (now CQLR, c. E-12.001), in 1996, designed to set out a proactive pay equity scheme for all predominately female job classes. This includes addressing pay inequities for women in workplaces without male comparators.
[8] The Act recognized that systemic wage discrimination exists in the workforce whether or not there are male comparators in a particular workplace. Its purpose was to provide a remedy for this reality:
1. The purpose of this Act is to redress differences in compensation due to the systemic gender discrimination suffered by persons who occupy positions in predominantly female job classes.
Differences in compensation are assessed within the enterprise, except if there are no predominantly male job classes in the enterprise.
[9] All employers with 10 or more employees were to conduct a pay equity exercise to identify and redress pay inequity through adjustments in compensation or the creation of a pay equity plan, depending on the size of the enterprise.
[10] At the time the Act came into force, there was, however, no methodology for assessing pay equity adjustments where there was no male comparator. The 1995 reports on which the Act was based acknowledged the unique enforcement issues for such workplaces, but offered no precise methodology. Nor did any concrete proposals emerge as a result of the consultations leading to the implementation of the Act. The only clear consensus was the acknowledgment that the necessary male comparators would have to be found outside the particular workplace.
[11] 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. Section 114 states:
114. The Commission may make regulations
(1) for the purposes of the determination of adjustments in compensation in an enterprise employing fewer than 50 employees where there are no predominantly male job classes, determining typical job classes on the basis of job classes identified in enterprises in which adjustments in compensation have already been determined and prescribing standards or weighting factors to be applied to the valuation of differences in compensation between such job classes, with due regard, in particular, for the characteristics of enterprises whose job classes are to be so compared;
(2) for the purposes of the establishment of a pay equity plan in an enterprise where there are no predominantly male job classes, determining typical job classes on the basis of job classes identified in enterprises, in which a pay equity plan has already been completed, prescribing methods to be used to determine the value of those job classes and to valuate the differences in compensation between the typical job classes and the job classes in an enterprise and prescribing standards or weighting factors to be applied to such differences, with due regard, in particular, for the characteristics of enterprises whose job classes are to be so compared;
. . .
Regulations of the Commission are subject to the approval of the Government and may be amended by the Government upon approval.
No regulation of the Commission may be approved by the Government until it is examined by the appropriate committee of the National Assembly.
[12] This section directed the Commission to develop a proposed methodology based on two criteria to bring it into line with s. 19 of the Quebec Charter: it was to draw comparisons with male job classifications found in enterprises where a pay equity exercise had already been completed; and it was to factor in the characteristics of the enterprises whose job classes were to be compared.
[13] Once a regulation was developed, s. 13 directed that workplaces with no predominantly male job classes were to establish a pay equity plan in accordance with the Regulation.[3] Under s. 71, the first pay equity adjustments became payable on the date by which the pay equity exercise was required to be completed:
71. The employer shall make the first adjustments in compensation under a pay equity plan on the date by which the plan must be completed or, in the case of an enterprise employing fewer than 50 employees, on the date by which adjustments in compensation must be determined.
If the employer fails to make adjustments in compensation within the applicable time limits, the unpaid adjustments shall bear interest at the legal rate from the time as of which they were payable.
[14] Section 38 of the Act sets out two possible deadlines by which those employers in workplaces with no male comparators were to determine adjustments or complete a pay equity plan:
38. In an enterprise where there are no predominantly male job classes, the adjustments in compensation must be determined or the pay equity plan must be completed either within the time limit set out in section 37 or within two years of the coming into force of the regulation made by the Commission under subparagraph 1 or 2 of the first paragraph of section 114, whichever time limit expires last.
[15] The first deadline, based on s. 37, was the same one as for workplaces where male job classes did exist. Section 37 gave employers in those workplaces that had male comparators four years to implement pay equity from the time they became subject to the Act.[4] They became subject to the Act on November 21, 1997. Four years from this date was November 21, 2001.
[16] But this first deadline for workplaces with no male comparators was illusory, since there could be no pay equity for those workplaces until a Regulation was passed. And, under s. 114, a regulation could not be passed until workplaces with male comparators had completed their first pay equity exercise on or before November 21, 2001.
[17] The only realistically possible deadline under the legislation was the second one, namely within two years of the coming into force of the Regulation. The Pay Equity Commission did not settle on a methodology until 2003 and the Regulation respecting pay equity in enterprises where there are no predominantly male job classes, (2005) 137 G.O. II, 976 (now CQLR, c. E-12.001, r. 2), was not promulgated until May 5, 2005. The two-year grace period provided by s. 38 further postponed pay equity for workplaces without male comparators until May 5, 2007.
[18] As a result, 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 the 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.
[19] This six-year legislatively delayed access to pay equity resulting from s. 38 of the Act was challenged by several unions, who argued that it amounted to a breach of s. 15(1) of the Charter for women in workplaces without male comparators.
[20] The trial judge found that the delay did not violate s. 15 (2014 QCCS 4197). 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. And if there was a distinction based on sex, it was not discriminatory because it was not based on the premise that employees in female-dominated workplaces were [translation] “less capable or . . . worthy of recognition or value as human beings” (para. 244 (CanLII)). The Court of Appeal of Quebec dismissed the appeal (2016 QCCA 424).
Analysis
[21] Section 15(1) of the Charter states:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[22] When assessing a claim under s. 15(1) , this Court’s jurisprudence establishes a two-step approach: Does the challenged law, on its face or in its impact, draw a distinction based on an enumerated or analogous ground, and, if so, does it impose “burdens or [deny] a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating . . . disadvantage”, including “historical” disadvantage? (Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 323-24 and 327; Kahkewistahaw First Nation v. Taypotat, [2015] 2 S.C.R. 548, at paras. 19-20.)
[23] The first question is therefore whether the limitation challenged by the unions — a six-year pay equity delay mandated by s. 38, for women employed in workplaces without male comparators — draws a distinction on the basis of sex.
[24] In my view, it does. The goal of pay equity legislation is to recognize and remedy the discrimination that women have suffered in the way they are compensated in the workforce. This is systemic discrimination premised on the historic economic and social devaluation of “women’s work” compared to “men’s work” (Report of the Commission on Equality in Employment (1984), at p. 232; Final Report of the Pay Equity Task Force (2004), at pp. 25-27). Accordingly, pay equity legislation, including the Act at issue here, draws a distinction based on sex in targeting systemic pay discrimination against women. And, as explained later in these reasons, the specific provisions of the Act that target particular groups of women based on where they work —