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SCC finds Quebec’s Pay Equity Act violates equality rights under the Charter

May 10, 2018

Supreme Court: Quebec’s Pay Equity Act violates women’s right to equality under the Canadian Charter of Rights and Freedoms

Workers in female-dominated jobs gained a bit more ground in the continuing fight for pay equity with this recent decision of the Supreme Court of Canada. The Supreme Court held that three sections of Quebec’s Pay Equity Act violated women’s right to equality under s. 15 of the Canadian Charter of Rights and Freedoms.

Background

Introduced in 2009, the challenged provisions of Quebec’s Pay Equity Act imposed an obligation on larger employers to perform a pay equity audit every five years. However, if pay inequities were identified through the audit, an employer was obligated only to adjust affected employees’ pay on a go-forward basis. This denied employees any retroactive compensation for pay inequities, unless they could prove that the employer had acted arbitrarily or in bad faith – an extremely difficult legal burden to reach.

To make matters worse, the challenged provisions of the law allowed employers to deny employees and unions key information about the date the pay inequities emerged, making it more difficult to challenge their employers’ pay equity decisions.

The Supreme Court’s decision

Justice Abella, who wrote the majority decision for the Court, had unequivocal words about how the unconstitutional provisions affected women. She said:

Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men…women, under this scheme, are expected to endure five-year periods of pay inequity…The scheme thus…correspondingly tolerates undervaluation of women’s work…

Pay equity schemes compare wages in female-predominant positions with those male-predominant positions that involve work of “equal value”, and then aim to adjust the wages of the female-predominant position if they are lower. The process is meant to correct the historical undervaluation of work of female-predominant positions. Quebec’s pay equity scheme is one of the only ones in Canada that takes a “proactive” approach – requiring employers to actually maintain pay equity over time, rather than only requiring them to address pay equity when employees or unions file complaints. However, Quebec will now have to make some changes to ensure that the scheme does that while still maintaining women’s right to equality on a constant basis.

The Court’s decision is an important victory for women (and indeed for anyone) who work in a female-dominated field. It protects pay equity as a continuous human right and not an “option” that a government can choose to suspend for arbitrary periods of time. It also reminds governments that they must be able to justify violating Charter rights with real, substantial evidence.

Read the decision here.

Colleen Bauman and Erin Moores represented the following interveners in this appeal: Professional Institute of the Public Service of Canada, Canadian Association of Professional Employees, Association of Canadian Financial Officers, and Professional Association of Foreign Service Officers.

Lawyers

Colleen Bauman, Erin Moores

Practice Areas

Appeals & Judicial Review, Pay Equity