Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux

Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux
Collection
Supreme Court Judgments
Date
2018-05-10
Neutral citation
2018 SCC 17
Report
[2018] 1 SCR 464
Case number
37347
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: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464
Appeal Heard: October 31, 2017 Judgment Rendered: May 10, 2018 Docket: 37347
Between:
Attorney General of Quebec
Appellant/Respondent on cross-appeal
and
Alliance du personnel professionnel et technique de la santé et des services sociaux et al.
Respondents/Appellants on cross-appeal
- and -
Attorney General of Ontario et al.
Interveners
Official English Translation: Reasons of Côté, Brown and Rowe JJ.
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment: (paras. 1 to 61)
Abella J. (McLachlin C.J. and Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)
Joint Reasons Dissenting on the Appeal: (paras. 62 to 114)
Côté, Brown and Rowe JJ.
Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464
Attorney General of Quebec Appellant/Respondent on cross‑appeal
v.
Alliance du personnel professionnel et
technique de la santé et des services sociaux,
Catherine Lévesque, Syndicat de la fonction
publique et parapublique du Québec inc.,
Fédération interprofessionnelle de la santé du Québec,
Guy‑Philippe Brideau, Nancy Bédard,
Syndicat des employé(e)s de l’Université de Montréal,
Sylvie Goyer, Conseil provincial des affaires sociales,
Johanne Harrell, Josée Saint‑Pierre, Ghyslaine Doré,
Conseil provincial du soutien scolaire,
Louise Paquin, Lucie Fortin,
Syndicat des professionnelles et professionnels
de Laval‑Rive‑Nord, SCFP 5222,
Syndicat des fonctionnaires municipaux
de Montréal (SCFP), section locale 429,
Section locale 3134 du Syndicat canadien
de la fonction publique, employé‑es de bureau
de la Ville de Lorraine, Henriette Demers,
Section locale 930 du Syndicat canadien
de la fonction publique (FTQ), Fernande Tremblay,
Syndicat canadien de la fonction publique,
section locale 4503, Josée Mercille,
Syndicat canadien de la fonction publique,
section locale 3642, Chantal Bourdon,
Conseil d’intervention pour l’accès des femmes
au travail (CIAFT) du Québec inc.,
Association des psychologues du Québec,
Syndicat des employées et employés professionnels‑les
et de bureau (CTC‑FTQ), section locale 578,
Lise Audet and Syndicat québécois des employées et employés
de service, section locale 298 (FTQ) Respondents/Appellants on cross‑appeal
and
Attorney General of Ontario,
Conseil du trésor, Commission des normes, de l’équité,
de la santé et de la sécurité du travail (formerly known as
Commission de l’équité salariale), Equal Pay Coalition,
New Brunswick Coalition for Pay Equity,
Women’s Legal Education and Action Fund,
Public Service Alliance of Canada,
Centrale des syndicats du Québec,
The Professional Institute of the Public Service of Canada,
The Canadian Association of Professional Employees,
The Association of Canadian Financial Officers and
The Professional Association of Foreign Service Officers Interveners
Indexed as: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux
2018 SCC 17
File No.: 37347.
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 — Amendments to legislative scheme addressing systemic wage discrimination, suffered essentially by women, by replacing continuous obligation to maintain pay equity with obligation to conduct audits every five years without retroactive adjustment to date of emergence of pay inequity — Whether s. 76.5 of Pay Equity Act, under which compensation adjustment is payable only from date of posting of results of audit process, and s. 103.1 para. 2, which bars Pay Equity Commission from assessing adjustment payments prior to posting, violate s. 15 of Charter — Whether s. 76.3, which does not require inclusion of precise date of emergence of pay inequity in audit posting, violates s. 15 of Charter — If so, whether infringement justifiable — Pay Equity Act, CQLR, c. E‑12.001, ss. 76.3, 76.5, 103.1 para. 2 — Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
In 1996, Quebec adopted a legislative scheme to address systemic wage discrimination against women. The Pay Equity Act set out a process aimed at ensuring that employers provided equal pay for work of equal value. Under ss. 40 to 43, which have now been repealed, employers had a continuous obligation to maintain pay equity and adjust compensation accordingly. After 10 years, the compliance with the Act had not met expectations.
In 2009, the Act to amend the Pay Equity Act replaced the ongoing obligation to maintain pay equity with a system of mandatory audits every five years in which the employer is only required to rectify the wages going forward. Under s. 76.5 of the Pay Equity Act, adjustments in compensation apply from the date of the posting of the results of the audit process. Section 76.3 provides no requirement that the audit posting include the date on which any pay inequity emerged. Under s. 103.1 para. 2, no compensation adjustments can be assessed by the Pay Equity Commission prior to the date of the audit posting. If, however, an employer acts “in bad faith or in an arbitrary or discriminatory manner”, adjustments in compensation and interest apply from the date of that conduct pursuant to s. 76.9 and the Pay Equity Commission may make a determination to that effect under s. 101 para. 3. The respondents brought proceedings seeking a declaration that these amendments violated the equality rights in s. 15 of the Canadian Charter of Rights and Freedoms .
The trial judge held that ss. 76.3 and 76.5 breached s. 15 . The declaration of invalidity was suspended for one year. The Court of Appeal upheld the trial judge’s finding that ss. 76.3 and 76.5 breached s. 15 of the Charter . In addition, it concluded that s. 103.1 para. 2 violated s. 15 . Regarding the cross‑appeal, both the trial judge and the Court of Appeal held that the unions did not meet their onus of proving the unconstitutionality of the provisions in the 2009 Act to Amend the Pay Equity Act that repealed ss. 40 to 43 of the Pay Equity Act.
Held (Côté, Brown and Rowe JJ. dissenting on the appeal): The appeal and the cross‑appeal should be dismissed. Sections 76.3, 76.5 and 103.1 para. 2 of the Pay Equity Act are unconstitutional.
Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: Sections 76.3, 76.5 and 103.1 para. 2 of the Pay Equity Act violate s. 15(1) of the Charter . The purpose of the Act is to provide “equal pay for work of equal value”, a strategy that recognizes that since “women’s work” is valued less than “men’s work”, the pay and status are lower and the result is systemic wage discrimination. Leaving wage inequities in place makes women “the economy’s ordained shock absorbers”. Pay equity legislation, such as the Act at issue here, accordingly targets women in redressing the pay discrimination they have suffered. The provisions at issue, which alter the way in which the legislation identifies and redresses differences in men’s and women’s pay, therefore draw distinctions based on sex.
Assessed on their own, and regardless of the prior legislative scheme, ss. 76.3, 76.5 and 103.1 para. 2 have a discriminatory impact. Any pay inequities emerging during the five year period between audits go uncorrected until the next audit. Even when an audit reveals the emergence of pay inequity during the previous five years, only adjustment payments going forward are payable. This effectively gives an amnesty to the employer for discrimination between audits. Employers are required to post the results of the audit, but not the date on which pay inequity emerged, thus obscuring when adjustment payments ought to have been made. Employees are thus deprived of the evidentiary foundation for showing bad faith by the employer, which is the only route to obtaining retroactive compensation. Further, retroactive compensation is only available to sanction deliberate and improper behaviour in the conduct of mandatory audits, not the discrimination that may otherwise be revealed by the process. Inequities that subsequently emerge before the next audit will therefore be immune from remedial redress except where the claimants can prove intentional discrimination, an approach to discrimination long rejected by this Court and at odds with the purpose of pay equity legislation, namely, to remedy systemic discrimination.
Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men — namely, compensation tied to the value of their work. Men receive this compensation as a matter of course; women, under this scheme, are expected to endure five year periods of pay inequity, and to receive equal compensation only where their employer voluntarily acts in a non‑discriminatory manner, or where they can meet the heavy burden of proving the employer engaged in deliberate or improper conduct. The scheme thus places barriers along the path to equal pay for women. And it correspondingly tolerates undervaluation of women’s work whenever women cannot clear the specific hurdle of proving that they should be paid equally because their employer acted improperly. Absent such behaviour, working women are told that they must simply live with the reality that they have not been paid fairly, even where a statutorily mandated audit has made that fact clear.
Section 15(2) has no application in cases such as this one. It protects ameliorative programs for disadvantaged groups from claims by those the program was not intended to benefit that the ameliorative program discriminates against them. Section 15(2) cannot bar s. 15(1) claims by the very group the legislation seeks to protect.
None of the impugned provisions can be justified under s. 1 . Encouraging increased employer compliance by lightening the burden through denial of retroactive payments can, in some circumstances, constitute a pressing and substantial objective. Although there is no empirical or other evidence to show how denying retroactive compensation has advanced this objective, reducing the employer’s obligations can be seen, at a theoretical level, to be rationally connected to increased employer compliance. At the minimal impairment stage, however, there is virtually no evidence that other means of encouraging employer compliance — such as stricter enforcement of the Pay Equity Act’s requirements through the offence provisions contained within it — would be ineffective. Therefore, eliminating pay equity obligations except for adjustments every five years does not impair female employees’ equality rights as little as reasonably possible, it suspends their rights to be free from pay discrimination for five year intervals.
Quebec has failed to demonstrate that the law satisfies the overall balancing requirement of the s. 1 analysis. The harmful effects are to create barriers to access for equitable pay for the very people whom this pay equity scheme was designed to help; the benefits are, at the moment, indiscernible and speculative given the absence of evidence. Reducing employers’ obligations in the hopes of encouraging compliance subordinates the substantive constitutional entitlement of women to be free from discrimination in compensation, to the willingness of employers to comply with the law. As for the information in the audit posting, the justifications analysis fails at every step. Quebec has not provided any explanation for the exclusion of the date when pay inequities re‑emerged other than to say that it is not relevant information under the new scheme. Since the five year gap between remedial compensation has been found to be unconstitutional, the date on which pay inequities re‑emerge is plainly relevant information.
As for the cross‑appeal, the onus of proving the unconstitutionality of the provisions in the 2009 Act to Amend the Pay Equity Act that repealed ss. 40 to 43 of the Pay Equity Act was not met.
Per Côté, Brown and Rowe JJ. (dissenting on the appeal): The appeal should be allowed and the cross‑appeal dismissed. Sections 76.3, 76.5 and 103.1 para. 2 of the Pay Equity Act do not create a discriminatory distinction that infringes s. 15 of the Canadian Charter of Rights and Freedoms .
At the first step of the analysis under s. 15(1) of the Charter , the claimant must show not only the mere existence of a distinction in the Act, but also a form of disadvantage flowing from that distinction. Because the Act entails distinctions that may affect a group consisting essentially of women, it would be absurd if an approach whose focus was on discriminatory effects did not deal first with the issue of the disadvantage resulting from one or more of those distinctions, at least on a prima facie basis. Pay equity for private sector enterprises is a creation of the Quebec legislature and does not have constitutional status. It is not appropriate to compare the amendments to the Act with the previous version of the Act. Such an approach would have the effect of constitutionally entrenching one mechanism that confers benefits on a group to which an enumerated or analogous ground applies, to the detriment of other, equally valid, mechanisms. It would then no longer be open to the legislature to explore other avenues.
The employees in question have enjoyed a significant benefit. The Act, as a whole, creates a complete hybrid scheme that allows for a periodic review of compensation and provides a retroactive remedy in case of abuse. It thus addresses the problem of systemic discrimination in addition to, among others, that of intentional discrimination. The Act’s ameliorative effect becomes clear when the situation is considered through the lens of the comparator group. Thus, employees in an enterprise that has fewer than 10 employees are excluded from the scope of the Act and do not benefit from a periodic audit of their compensation. They cannot use a complaint mechanism comparable to the one provided for in the Act should their employer modify their duties without taking into account the insidious factors at the root of the systemic discrimination from the standpoint of a correlative audit of their remuneration.
At the second step of the s. 15(1) analysis, it is necessary to determine whether the amendments are discriminatory by considering whether they respond to the actual capacities and needs of the members of the group or instead impose a burden or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage. In this case, it has not been established that the measure has a discriminatory effect on the group. The state conduct does not widen — rather than narrowing — the gap between the historically disadvantaged group and the rest of society. Contextual factors like the ones set out in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 — (1) a pre‑existing disadvantage, (2) a correspondence with actual characteristics, (3) the impact on other groups and (4) the nature of the affected interest — are helpful in determining whether a particular distinction is discriminatory.
Although women face systemic discrimination in matters of compensation, the impugned sections do not perpetuate or reinforce the idea that women can be paid less simply because they are women. The Act’s objective is to permanently eradicate pay inequities by establishing a maintenance mechanism in ss. 76.1 to 76.9. This new mechanism responds to the needs of the women concerned by effectively preventing abuse by employers and also by providing them with a periodic audit of their remuneration. The scheme established by the Act deals with only one ground of discrimination, namely sex, and applies to only a small portion of female employees in Quebec, those who hold positions in predominantly female job classes in enterprises with 10 or more employees. There is no doubt that work is an important aspect of life and that, for many people, it is a large part of their identity. In enacting the Act, the Quebec legislature has recognized the nature of pay equity and its importance for women. However, the adopted measures have not constitutionally entrenched pay equity such that they would be impossible to modify.
Because it is the group to which an enumerated ground applies that is raising the discriminatory nature of the effects of a law whose specific object is the amelioration of conditions of the group’s members, the s. 15(2) analysis must be deferred until after the entire s. 15(1) analysis has been completed. If a court were to follow the approach proposed in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, according to which it must be determined whether s. 15(2) applies before turning to the second step of the s. 15(1) analysis so as to make it unnecessary to conclude that the equality guarantee has been violated before saving the impugned measure, the effect would be to terminate the analysis prematurely. The order set out in Kapp should be followed in any situation in which the claimant is not a member of the group to which the law applies. In the instant case, even if it were to be held that the specific mechanism created by the statutory amendments can be considered discriminatory, the Act as a whole should be protected under s. 15(2). There is no doubt that the Act genuinely has the promotion and achievement of substantive equality as its object, as it provides for measures to combat systemic discrimination.
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: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; 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; Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906.
By Côté, Brown and Rowe JJ. (dissenting on the appeal)
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; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. xxx; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; Vriend v. Alberta, [1998] 1 S.C.R. 493; Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703; Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325.
Statutes and Regulations Cited
Act to amend the Pay Equity Act, S.Q. 2009, c. 9, ss. 14, 23, 40.
Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
Canadian Human Rights Act, R.S.C. 1985, c. H‑6, s. 11 .
Charter of Human Rights and Freedoms, CQLR, c. C‑12, ss. 10, 19, 49.1.
Charter of human rights and freedoms, S.Q. 1975, c. 6, s. 19.
Individual’s Rights Protection Act, R.S.A. 1980, c. I‑2.
Interpretation Act, CQLR, c. I‑16, s. 41.
Labour Code, CQLR, c. C‑27, s. 47.2.
Pay Equity Act, CQLR, c. E‑12.001, ss. 1, 4, 16, 31, 34, 50, 76.1 to 76.9, 76.1, 76.3, 76.4, 76.5, 76.9, 101, 103.1 para. 2, 115 to 118.
Pay Equity Act, S.Q. 1996, c. 43, ss. 1, 4, 16, 31, 34, 40 [am. 2006, c. 6, s. 7; rep. 2009, c. 9, s. 14], 41 [rep. idem], 42 [rep. idem], 43 [rep. idem], 50, 76.1 to 76.11 [ad. 2009, c. 9, s. 23], 76.1 [ad. idem], 76.3 [ad. idem], 76.4 [ad. idem], 76.5 [ad. idem], 76.9 [ad. idem], 100 [am. 2009, c. 9, s. 36], 101 para. 3 [ad. 2009, c. 9, s. 37], 103.1 para. 2 [ad. 2009, c. 9, s. 40], 115 [am. 2009, c. 9, s. 44] to 118.
Treaties and Other International Instruments
Canada’s declaration in respect of Article 11(1)(d) made upon ratification of the Convention on the Elimination of All Forms of Discrimination against Women, Annex A, No. 20378, January 9, 1982, 1257 U.N.T.S. 496 [declaration withdrawn May 28, 1992, 1676 U.N.T.S. 554].
Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (No. 100), Can. T.S. 1973 No. 37.
Convention on the Elimination of All Forms of Discrimination against Women, 1249 U.N.T.S. 13, art. 11(1)(d).
Authors Cited
Anker, Richard. “Theories of occupational segregation by sex: An Overview” (1997), 136 Int’l Lab. Rev. 315.
Bilson, Beth. “The Ravages of Time: The Work of the Federal Pay Equity Task Force and Section 11 of the Canadian Human Rights Act ” (2004), 67 Sask. L. Rev. 525.
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.
Canada. Royal Commission on the Status of Women in Canada. Report of the Royal Commission on the Status of Women in Canada. Ottawa, 1970.
Cornish, Mary. “Closing the Global Gender Pay Gap: Securing Justice for Women’s Work” (2007), 28 Comp. Lab. L. & Pol’y J. 219.
McGill, Jena. “Section 15(2), Ameliorative Programs and Proportionality Review” (2013), 63 S.C.L.R. (2d) 521.
Sharpe, Robert J. and Kent Roach. The Charter of Rights and Freedoms, 5th ed. Toronto: Irwin Law, 2013.
Sheppard, Colleen. Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada. Montreal & Kingston: McGill‑Queen’s University Press, 2010.
Smith, Lynn, and William Black. “The Equality Rights” (2013), 62 S.C.L.R. (2d) 301.
APPEAL and CROSS‑APPEAL from a judgment of the Quebec Court of Appeal (Rochette, Doyon and Gagnon JJ.A.), 2016 QCCA 1659, [2016] AZ‑51331102, [2016] J.Q. no 13251 (QL), 2016 CarswellQue 9477 (WL Can.), affirming in part a decision of Martin J., 2014 QCCS 149, [2014] AZ‑51037193, [2014] J.Q. no 319 (QL), 2014 CarswellQue 362 (WL Can.). Appeal dismissed, Côté, Brown and Rowe JJ. dissenting. Cross‑appeal dismissed.
Louis P. Bernier and Marc‑André Boucher, for the appellant/respondent on cross‑appeal.
Denis Bradet, for the respondents/appellants on cross‑appeal Alliance du personnel professionnel et technique de la santé et des services sociaux, Catherine Lévesque and Syndicat de la fonction publique et parapublique du Québec inc.
Pierre Brun and Johanne Drolet, for the respondents/appellants on cross‑appeal Fédération interprofessionnelle de la santé du Québec, Guy‑Philippe Brideau and Nancy Bédard.
Annick Desjardins, for the respondents/appellants on cross‑appeal Syndicat des employé(e)s de l’Université de Montréal, Sylvie Goyer, Conseil provincial des affaires sociales, Johanne Harrell, Josée Saint‑Pierre, Ghyslaine Doré, Conseil provincial du soutien scolaire, Louise Paquin, Lucie Fortin, Syndicat des professionnelles et professionnels de Laval‑Rive‑Nord, SCFP 5222, Syndicat des fonctionnaires municipaux de Montréal (SCFP), section locale 429, Section locale 3134 du Syndicat canadien de la fonction publique, employé‑es de bureau de la Ville de Lorraine, Henriette Demers, Section locale 930 du Syndicat canadien de la fonction publique (FTQ), Fernande Tremblay, Syndicat canadien de la fonction publique, section locale 4503, Josée Mercille, Syndicat canadien de la fonction publique, section locale 3642, Chantal Bourdon, Conseil d’intervention pour l’accès des femmes au travail (CIAFT) du Québec inc., Association des psychologues du Québec, Syndicat des employées et employés professionnels‑les et de bureau (CTC‑FTQ), section locale 578, Lise Audet and Syndicat québécois des employées et employés de service, section locale 298 (FTQ).
S. Zachary Green and Courtney Harris, for the intervener the Attorney General of Ontario.
No one appeared for the interveners Conseil du trésor and Commission des normes, de l’équité, de la santé et de la sécurité du travail (formerly known as Commission de l’équité salariale).
Fay Faraday and Janet E. Borowy, for the interveners the Equal Pay Coalition, the New Brunswick Coalition for Pay Equity and the Women’s Legal Education and Action Fund.
Andrew Raven, Andrew Astritis and Morgan Rowe, for the intervener the Public Service Alliance of Canada.
Matthew Gapmann and Nathalie Léger, for the intervener Centrale des syndicats du Québec.
Colleen Bauman and Erin Moores, for the interveners The Professional Institute of the Public Service of Canada, The Canadian Association of Professional Employees, The Association of Canadian Financial Officers and The Professional Association of Foreign Service Officers.
The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. was delivered by
[1] Abella J. — In 1996, Quebec adopted a legislative scheme to address systemic wage discrimination against women. The Pay Equity Act, S.Q. 1996, c. 43 (now CQLR, c. E-12.001), set out a process of reporting, planning, comparison, evaluation and adjustment payments aimed at ensuring that employers provided equal pay for work of equal value. Once that goal — pay equity — had been achieved, the Act imposed a continuing obligation on employers to maintain it. And whenever employers failed to maintain pay equity, the Act gave employees the right to challenge the failure and have it fully remedied immediately.
[2] After 10 years, the Government of Quebec found that compliance with the Act had not met expectations. In 2009, it adopted the Act to amend the Pay Equity Act, S.Q. 2009, c. 9, which replaced the ongoing obligation to maintain pay equity with a system of mandatory audits every five years. When an audit revealed the failure to maintain pay equity, the employer was only required to rectify the wages going forward. Unless the employer acted arbitrarily or in bad faith, he or she was not required to compensate for wage inequities that emerged between audits.
[3] Several unions challenged the amendments on the basis that they violated the equality rights in s. 15 of the Canadian Charter of Rights and Freedoms . The Quebec courts agreed, and parts of the legislative provisions amending the Pay Equity Act were struck down. The declaration of invalidity was suspended for one year.
[4] This is an appeal by Quebec, arguing that there is no breach of s. 15 of the Charter , and, if there is, it can be justified under s. 1. There was a cross-appeal by the unions seeking to have additional provisions declared unconstitutional.
[5] I agree with the Quebec courts and would dismiss both the appeal and the cross-appeal.
Background
[6] The first Canadian efforts to close the gap between men and women’s wages in the 1950s were called “equal pay for equal work” and focused on wage gaps between men and women in the same job. Because this approach failed to capture the systemic aspect of wage discrimination, it was replaced by the concept of “equal pay for work of equal value”, a wider and more nuanced strategy that recognized that since “women’s work” is valued less than “men’s work”, the pay and status are lower and the result is systemic wage discrimination (Beth Bilson, “The Ravages of Time: The Work of the Federal Pay Equity Task Force and Section 11 of the Canadian Human Rights Act ” (2004), 67 Sask. L. Rev. 525, at p. 526; Richard Anker, “Theories of occupational segregation by sex: An Overview” (1997), 136 Int’l Lab. Rev. 315; Mary Cornish, “Closing the Global Gender Pay Gap: Securing Justice for Women’s Work” (2007), 28 Comp. Lab. L. & Pol’y J. 219, at pp. 223-25).
[7] Two Royal Commissions contributed to the revised approach which replaced “equal work” with “equivalent” work or work of “equal value”. The first, in 1970, was the ground-breaking Report of the Royal Commission on the Status of Women in Canada. It noted the persistence of occupational segregation and systemic wage discrimination notwithstanding that there had been laws requiring equal pay for equal work since the 1950s (paras. 236-37). It recommended that “the concept of skill, effort and responsibility be used as objective factors in determining what is equal work” (para. 239 (emphasis deleted)), a recommendation that was ultimately reflected in s. 11 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 .[1]
[8] In 1984, the Report of the Commission on Equality in Employment concluded that “equal pay for work of equal value should be part of all employment equity programs” (p. 261). That meant adopting policies “looking at those jobs in which women predominate and comparing their wage rates with those . . . jobs at a comparable level in which men predominate. If a wage difference is found, it then becomes a question of trying to determine whether it is a legitimate or fair one” (p. 244). Leaving wage inequities in place makes women “the economy’s ordained shock absorbers” (p. 234).
[9] These recommendations reflected approaches found in international instruments. The International Labour Organization (ILO), for example, adopted its Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (No. 100), Can. T.S. 1973 No. 37, in 1951, which imposed an obligation on ratifying states to apply the principle of “equal remuneration for men and women workers for work of equal value” (ratified by Canada in 1972). The same principle is embodied in Art. 11(1)(d) of the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1249 U.N.T.S. 13 (ratified by Canada in 1981).[2]
[10] In 1975, Quebec adopted s. 19 of its Charter of Human Rights and Freedoms, S.Q. 1975, c. 6 (now CQLR, c. C-12), which states that “[e]very employer must, without discrimination, grant equal salary or wages to the members of his personnel who perform equivalent work at the same place.” The regime for ensuring compliance with s. 19 relied on employee complaints to the Commission des droits de la personne. It proved to be ineffective.
[11] Quebec adopted a more proactive scheme in its 1996 Pay Equity Act. Section 1 of the Act sets out its purpose as being “to redress differences in compensation due to the systemic gender discrimination suffered by persons who occupy positions in predominantly female job classes”. Rather than relying on individual complaints, the Act imposed ongoing legal obligations on employers to measure and correct pay inequity, and set out processes for ensuring compliance with those obligations.
[12] The Act applies to all employers — public and private — with 10 or more employees.[3] Regardless of the number of employees, all employers must submit a report on the implementation of the Act in their enterprises (s. 4). Employers with between 10 and 49 employees are responsible for determining and making adjustments to “afford the same remuneration, for work of equal value” (s. 34). All employers with between 50 and 99 employees must create a pay equity plan (s. 31), which is required to contain, among other features, the identification of predominately female job classes, the methodology for comparison and valuation, and the terms and conditions for adjustment payments (s. 50). The largest employers (those with 100 or more employees) have to establish a pay equity committee with representation from their employees (s. 16).
[13] Under ss. 40 to 43, which have now been repealed, employers had a continuous obligation to maintain pay equity and adjust compensation accordingly:
40. The employer shall, after adjustments in compensation have been determined or a pay equity plan has been completed, maintain pay equity in his enterprise.
In particular, the employer shall ensure maintenance of pay equity upon the creation of new positions or new job classes, the modification of existing positions or of the conditions applicable to existing positions and the negotiation or renewal of a collective agreement. When a collective agreement is being negotiated or renewed, the certified association concerned or, if applicable, the bargaining agent appointed under the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors (chapter R-8.2) shall also ensure that pay equity is maintained. [As amended by 2006, c. 6, s. 7.]
. . . [4]
43. Where, because of changed circumstances in the enterprise, the compensation adjustments or the pay equity plan are no longer appropriate to maintain pay equity, the employer shall make the modifications necessary to maintain pay equity.
[14] Section 40 confirmed that the obligation to maintain pay equity was triggered by certain changes in the circumstances of the enterprise, such as “the creation of new positions or new job classes, the modification of existing positions or of the conditions applicable to existing positions and the negotiation or renewal of a collective agreement”. If such events occurred, an employer had to adjust compensation accordingly — and prospectively. The employer’s failure to maintain pay equity under ss. 40 to 43 was to be remedied based on a complaints process:
100. Upon receiving a complaint from an employee or a certified association representing employees in an enterprise alleging that pay equity is not being maintained in the enterprise, the Commission shall investigate the matter and determine, where applicable, the measures to be taken to correct the situation, including the establishment of a pay equity plan. Any required adjustments in compensation shall bear interest at the legal rate as of the time they should have been paid.
[15] As a result, the Pay Equity Commission had the duty to investigate complaints regarding employers’ failure to maintain pay equity. Where it found that the obligation to maintain pay equity had been breached, it had the power to order adjustments in compensation retroactive to the date on which pay inequity re-emerged.
[16] Despite specific deadlines set out in the Act, in the 10 years following its enactment, only 47 percent of employers had established a pay equity plan. Of the remainder, 38 percent had not initiated the process to establish such a plan. Faced with this widespread non-compliance, Quebec decided to reduce the employers’ obligation to maintain pay equity, in the hope that doing so would lead to better compliance. The result was the 2009 Act to amend the Pay Equity Act. There is no evidence before this Court about whether compliance has improved as a result of the amendments.
[17] The amendments at issue in this appeal are the following:
• Sections 40 to 43 were repealed, abolishing the employers’ continuous obligation to maintain pay equity;[5]
• Sections 76.1 to 76.11 were added, requiring pay equity audits every five years and setting out a process for audits;[6] and
• Section 103.1 para. 2 was added, preventing retroactive remedies for the period between audits.[7]
[18] Section 76.1 stipulates that once a pay equity plan is established, employers must conduct a pay equity audit in their enterprise every five years. After conducting the pay equity audit, the results must be posted for 60 days. The posting must include a summary of the audit process as well as a list of events leading to compensation adjustments. There is, however, no requirement that the audit posting include the date on which any pay inequity emerged (s. 76.3). Employees can request additional information within 60 days of the posting (s. 76.4).
[19] Adjustments in compensation — plus interest — apply from the date of the posting (s. 76.5). No compensation adjustments can be assessed by the Pay Equity Commission prior to the date of the audit posting (s. 103.1 para. 2). If, however, an employer acts in bad faith or in an arbitrary or discriminatory manner, adjustments in compensation and interest apply from the date of that conduct (s. 76.9) and the Pay Equity Commission may make a determination to that effect (s. 101 para. 3).
[20] The unions brought proceedings in the Quebec Superior Court seeking a declaration that these amendments violated s. 15 of the Charter .
[21] The trial judge held that there was no inherent constitutional problem with Quebec’s decision to repeal ss. 40 to 43 and impose in their place a system of periodic mandatory audits (2014 QCCS 149). But he agreed with the unions that the addition of s. 76.5 breached s. 15 of the Charter because 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 found s. 76.3 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 declaration of invalidity was suspended for one year.
[22] The Court of Appeal upheld the trial judge’s finding that ss. 76.3 and 76.5 perpetuate disadvantage for women by preserving the pay inequity status quo and providing for up to five years of amnesty for employers (2016 QCCA 1659). In addition, it concluded that s. 103.1 para. 2, the provision precluding the Pay Equity Commission from ordering retroactive compensation, violated s. 15 . It accepted for the sake of argument that the objective of the 2009 amendments was [translation] “improving and strengthening a former scheme that had been ineffective, particularly where the maintenance of pay equity was concerned” (para. 85 (CanLII)), but held that ss. 76.3, 76.5 and, by implication, 103.1 para. 2 were neither rationally connected, minimally impairing, nor proportionate to that objective.
[23] I agree with the Court of Appeal that ss. 76.3, 76.5 and 103.1 para. 2 are unconstitutional.
Analysis
[24] 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 discr