SUPREME
COURT OF CANADA
Citation: Centrale des syndicats du Québec v. Quebec (Attorney
General), 2018 SCC 18
|
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.
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
csq v. quebec (a.g.)
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. Althought 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, CQLR, c. E‑12.001, r. 2.
Regulation
respecting pay equity in enterprises where there are no predominantly male job
classes, (2005) 137 G.O. II, 977.
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
Abella J. —
[1]
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, 977 (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 — such as s. 38 — also necessarily draw a distinction based on
sex.
[25]
The contrary view adopted by the trial judge, the Court of Appeal, and my
colleague, is that the distinction created by the Act was based not on
sex, but on the absence of male comparator groups in the enterprise. This is
“formal equality”, an approach expressly rejected by this Court in Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, where the
Court refused to apply a rigid Diceyan analysis and declared, instead, that
substantive equality is the premise underlying s. 15 .
[26]
The trial judge’s
approach is difficult to distinguish from the paradigmatic example of formalism
in Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183, which was
specifically rejected in Andrews. There, the Court had concluded that
legislation excluding pregnant women from unemployment benefits did not
discriminate on the basis of sex, but on the basis of pregnancy.[5]
[27]
Bliss was decided under s. 1 (b) of the Canadian
Bill of Rights, S.C. 1960, c. 44 . Its “similarly situated” “treating likes
alike” approach — resulting in the conclusion that pregnancy-related
discrimination is not based on sex because not all women are pregnant — was
also rejected in Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396:
. . . a formal analysis based on comparison between the claimant group and a
“similarly situated” group, does not assure a result that captures the wrong to
which s. 15(1) is directed . . . . What is required is not formal comparison
with a selected mirror comparator group, but an approach that looks at the full
context, including the situation of the claimant group and . . . the impact of
the impugned law . . . . [para. 40]
(See also, Quebec v. A, at
para. 346, rejecting the analysis in Nova Scotia (Attorney General) v. Walsh,
[2002] 4 S.C.R. 325.)
[28]
In this case, the trial judge’s analysis falls
into precisely the same error as Bliss by holding, in effect, that the
distinction created by s. 38 is not based on sex because not all women
are denied timely access to the scheme, only those in certain workplaces. The relevant distinction created by s. 38
of the Act is between male employees and underpaid female employees,
whether or not those male employees are in the same workplace. The trial
judge’s approach 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 (Taypotat, at para. 21).
[29]
And the sex-based character of the distinction
drawn by s. 38 is inescapable. That is because the two categories into which
the Act sorts women — women in workplaces with male comparators, under
s. 37, and those without such comparators, under s. 38 — are themselves
inextricably related to sex. Only if we ignore the gender-driven bases
for the two categories can it be said that the distinction is based only on
workplace and not on sex. Not only are both categories
expressly defined by the presence or absence of men in the workplace, but, more
fundamentally, both categories are set up to address disparities in pay between
men and women. Moreover, since women in workplaces without male comparators may
suffer more acutely from the effects of pay inequity precisely because of the
absence of men in their workplaces, 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.
[30]
The second question is
whether that distinction is a discriminatory one, that is, whether it imposes
burdens or denies benefits in a way that reinforces, perpetuates, or
exacerbates disadvantage.
[31]
The discriminatory
impact of the delay is clear. The women targeted for the delay created by s. 38
(those in workplaces with no male comparators), suffer the effects of pay
discrimination — without a remedy — for the period of the delay, in this case
six years.
[32]
The fact that the
legislation did not create pay discrimination is irrelevant. In Vriend
v. Alberta, [1998] 1 S.C.R. 493, this Court held that “[i]t is not necessary to find that the legislation creates the
discrimination existing in society” to find a s. 15 breach (para. 84 (emphasis
in original)). There, as here,
the law perpetuated the disadvantage of a protected group through a legislated
“denial of access to remedial procedures for
discrimination”, remedial procedures that “they so urgently need because of the
existence of discrimination against them in society” (Vriend, at paras.
84 and 97).
[33]
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. Whatever the motives behind the decision, this is
“discrimination reinforced by law”, which this Court has denounced since Andrews
(p. 172). The fact, then, that women in one type of workplace — with male
comparators — received a remedy promptly is not an answer to the question of
whether women in another type of workplace were also disadvantaged. It is no
defence to a claim of discrimination by one group of women to suggest that
another group has had its particular discrimination addressed.
[34]
There is no doubt that the claimants in this
case will experience a considerable economic impact as a result of the delay.
Occupational segregation and low wages “usually go hand in hand” (Final Report
of the Pay Equity Task Force (2004), at p. 15). “[H]istorical attitudes
towards the role of women” tend to “result in the undervaluation of ‘female
jobs’ in comparison with those of men . . . when determining wage rates” (Report
of the Committee of Experts on the Application of Conventions and
Recommendations (2007), at p. 271). Put simply, “the more women are
concentrated in a field of work, the less it pays” (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. 224-25). And enterprises that employ
mainly women tend to have lower pay rates (Oelz et al., at p. 18). So, as
previously noted, 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 in a more pronounced way.
[35]
The fact that the Act
was intended to help these women does not 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 (Andrews,
at pp. 181-82; Quebec v. A, at para. 333). As a result, the trial judge’s finding that the delay
was not based on the assumption that employees in female segregated workplaces were “less capable or . . . worthy of recognition or
value as human beings or as members of Canadian society” (Law v. Canada
(Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 99)
cannot sanitize the discriminatory impact (Quebec v. A, at paras. 244,
327 and 330).
[36]
The impact of the delay
created by s. 38, therefore, 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 .
[37]
Quebec suggests that s.
15(2) could apply in this case to immunize s. 38 from the unions’ challenge
under s. 15(1) . In my respectful view, s. 15(2) has no application whatever to
this case. It states:
Subsection (1) does not preclude any
law, program or activity that has as its object the amelioration of conditions
of disadvantaged individuals or groups including those that are disadvantaged
because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
[38]
The purpose of s. 15(2) is to “save ameliorative
programs from the charge of ‘reverse discrimination’” (Alberta (Aboriginal
Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, at para.
41; R. v. Kapp, [2008] 2
S.C.R. 483). Reverse discrimination involves a claim
from someone outside the scope of intended beneficiaries who alleges that
ameliorating those beneficiaries discriminates against him. 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) . And it would be equally inconsistent with the purpose
to suggest that legislation that has a discriminatory impact on a scheme’s
intended beneficiaries, can “serve” or be “necessary to” any ameliorative
purpose in the sense intended by this Court in Cunningham.
[39]
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) and the
reasoning underlying this Court’s decision in Kapp dictate that, 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, there is no such claim. The complainants in this
case are women in workplaces without male comparators. They have not been excluded
from the scheme. On the contrary, they have been expressly included but
in a manner they claim has a discriminatory impact. Indeed, Quebec’s argument
against a finding of discriminatory impact in this case is predicated on
the fact that the scheme is intended to benefit women in workplaces without
male comparators. And s. 1 of the Act leaves no doubt that the scheme
aims to benefit “persons who occupy positions in predominantly female job
classes”, without any qualifiers, and its second paragraph makes it clear that
the claimants were always part of that target group.
[40]
Even if a pay equity statute could be characterized
as an “affirmative action” or “employment equity” program anticipated by s.
15(2), a highly debatable proposition, the women who have brought the s. 15(1)
claim in this case are the very beneficiaries of this scheme. They are not
arguing that they have been excluded from the scheme, they are arguing that the
timeline in the scheme applicable to them has a discriminatory impact. This is
not a claim of “reverse discrimination”, it is a claim of discrimination,
period.
[41]
The Act as a whole is, by its express
terms, intended to apply to and benefit women in two kinds of workplaces —
where male comparators exist, and where they do not. Different timelines have
been set out for each. The claim of discrimination arises not from the
difference in the timelines, which is not the focus of the complaint, but from
the extent of the delay resulting from the timeline applicable to the
claimants. To suggest that having different timelines means that one of those
groups is not within the class of “intended beneficiaries” is, with respect, a
misreading of the legislative scheme and of the concept of “reverse
discrimination”.
[42]
This brings us to s. 1
of the Charter . Quebec bears the burden of justifying the prima facie
infringement of s. 15(1) by identifying a pressing and substantial objective
and showing that, in furtherance of that objective, it did not
disproportionality interfere with the Charter right. The first step is to identify the objective of the infringing
measure, namely the legislatively mandated delay in pay equity in workplaces
where there are no male comparators. This delay occurred because of the
combined effect of ss. 38 and 114 of the Act.
[43]
The essence of
Quebec’s argument is that the pressing and substantial objective was to enact a
scheme that created an effective remedy for systemic pay discrimination for
women who were outside the existing pay equity scheme. The delay was, it
argued, necessary to finding the right approach. I see no reason for refusing
to accept this as the objective of the delay caused by s. 38.
[44]
The next question is
whether the delay is rationally connected to the purpose. The Pay Equity
Commission needed time to develop a methodology, and the resulting regulation
had to move through the necessary stages of executive and legislative approval.
The issue was complex and required considerable research and analysis. The 1995 reports commissioned
by the government gave no guidance to Quebec on how to measure gender-based
inequity in private enterprises lacking male comparators. Nor did any solution
emerge as a result of the public consultations held during the legislative
process. Moreover, there was scant policy experience elsewhere to draw on for
inspiration. When the Act was adopted, there was
little guidance from other Canadian jurisdictions for extending the benefits of
pay equity legislation to female employees in workplaces without male
comparators in the private sector. The closest equivalent in terms of coverage
was Ontario’s Pay Equity Act,
R.S.O. 1990, c. P.7, but it applied only to workplaces
in the “public” sector. I
therefore accept that the delay in developing and implementing a credible
methodology is rationally connected to the objective of creating the
possibility of an effective remedy.
[45]
As to minimal
impairment, the question is whether the delay that resulted from the
legislation impaired equality rights as little as reasonably necessary to
create the possibility of an effective remedy.
[46]
Quebec was seeking a wide-ranging and pioneering
approach to pay equity for women in workplaces without male comparators. Where,
as here, the government introduced, and gave effect to, an entirely new regime,
a degree of delay is to be expected. Minimal impairment requires the government
to narrowly tailor limitations to its pressing and substantial objective, but,
as McLachlin J. held in RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199:
The tailoring process seldom admits of
perfection and the courts must accord some leeway to the legislator. If the law
falls within a range of reasonable alternatives, the courts will not find it
overbroad merely because they can conceive of an alternative which might better
tailor objective to infringement . . . . [para. 160]
In other words, 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 (RJR-MacDonald, at para. 135; Irwin
Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pp.
993-94; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R.
624).
[47]
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.
[48]
The fact that so many years elapsed between the
adoption of the Act and the promulgation of the Regulation is, on its
face, troubling. The trial judge reviewed in considerable detail the reasons
for the delay and found that it was not caused by a lack of diligence on
Quebec’s part. There was ample evidence to support that factual finding. In
this case, a significant cause of the delay was that the Pay Equity Commission,
the agency in charge of administering the Act, was itself only created
in 1996 and was tasked with numerous new duties. The move in 1996 from a
complaints-based regime under s. 19 of the Quebec Charter to a proactive
pay equity scheme meant that the Commission had to develop new strategies for
implementation on multiple fronts.
[49]
As the trial judge found, the first proposal for
a methodology to the Minister of Labour came in 2002 and was the result of
considerable effort from the Pay Equity Commission. In the end, it was rejected
because it did not conform to the conditions in s. 114. The Commission’s second
proposal in 2004 to the Minister of Labour ultimately proved successful, and
was followed closely by the promulgation of the Regulation in 2005. While
close to the line, in my view the record supports the conclusion that Quebec
was not unreasonable in the steps it took to keep the delay within reasonable
bounds.
[50]
And I would make the same observation regarding the
unions’ complaints about the two-year grace period given to employers under s.
38. Just as the scheme contemplated a regrettable but necessary period of delay
while a viable methodology was developed and approved, it also contemplated a
two-year period for employers to determine how to implement the new regime in
their enterprises. Quebec struck an acceptable balance between the scheme’s
objective in ensuring compensation, and the logistical complexity of
implementing a new system. Again, although close to the line, in my respectful
view the two-year grace period did not bring the length of the delay outside reasonable
bounds.
[51]
The final step is proportionality, balancing
the harm of the delay created by s. 38 against the benefit of waiting for the
implementation of the regime.
[52]
The negative consequences of the delay are clear: access to pay equity was postponed until
May 5, 2007. In the time that elapsed between the adoption of the Act
and the end of the two-year grace period, women in workplaces without male
comparators continued to experience pay inequity.
[53]
In my respectful view,
however, the ultimate advantages of Quebec’s expanded approach outweigh the
harm. 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 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.
[54]
Nonetheless, the unions argue that Quebec cannot
satisfy the proportionality test because of the absence of retroactive payments
covering the period of the delay. Quebec chose to make compensation available
from the point in time at which a viable methodology had been developed. This
represented a proper balancing of interests. On the one hand, the scheme was
designed to make employers responsible for paying compensation once they had
the tools to identify and measure pay inequity. On the other, employers would not
be responsible for compensation before those tools were developed. As
this Court held in RJR-MacDonald, proportionality does not require
perfection, nor does legislation fail the proportionality test just because the
claimants can “conceive of an alternative which might
better tailor objective to infringement” (para. 160). The test is whether the balance Quebec struck falls within the range of “reasonable
alternatives” (para. 160) and results in greater benefit than harm. In my view,
it does.
[55]
The prima facie breach is therefore
justified under s. 1 .
[56]
I would dismiss the appeal with costs.
English version of the reasons of Wagner,
Côté, Brown and Rowe JJ. delivered by
Côté
J. —
I.
Overview
[57]
As Binnie J. noted in Newfoundland
(Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, at
para. 30, and as the trial judge reiterated in the case at bar (2014 QCCS
4197, at para. 17 (CanLII)), “[p]ay equity has been one of the most
difficult and controversial workplace issues of our times.” This appeal
provides a good illustration of how difficult it is to achieve such an
objective.
[58]
For many years, the situation of women in the
workplace was characterized by significant inequality resulting from prejudice,
stereotyping and discrimination. Such discrimination was described as systemic,
because it [translation] “is
cloaked in normality, so deeply imprinted on our attitudes and thinking is the
gender‑based division of social roles” (Journal des débats de la
Commission des affaires sociales, vol. 34, No. 35, 1st Sess.,
35th Leg., February 6, 1996, at p. 1).
[59]
This problem was magnified by occupational
segregation. Women were often concentrated in a narrow range of occupations
with characteristics commonly associated with female job classes. The result
was that these job classes were devalued and that such employees were often
underpaid.
[60]
Conscious of this problem, the Quebec
legislature enacted the Pay Equity Act, S.Q. 1996, c. 43 (now CQLR, c. E‑12.001) (“Act”),
on November 21, 1996. The purpose of the Act, which is applicable to both
the public sector and the private sector, is to “redress differences in
compensation due to the systemic gender discrimination suffered by persons who
occupy positions in predominantly female job classes”
(s. 1 ).
[61]
The Act requires every public or private
employer whose enterprise has between 10 and 49 employees to determine the
adjustments in compensation required to afford the same remuneration, for work
of equal value, to employees[6] holding positions in predominantly female job classes as to
employees holding positions in predominantly male job classes (s. 34).
[62]
An employer whose enterprise has 50 or more
employees must establish, in accordance with the Act, a pay equity plan to
redress differences in compensation due to discrimination (ss. 10, 31 and
50).
[63]
As a general rule, employers that were subject
to the Act when it came into force on November 21, 1997 had to determine
the required compensation adjustments and make the necessary payments within
four years, that is, by November 21, 2001 (ss. 37
and 71). If an employer failed to do so within this time limit, the unpaid adjustments
bore interest at the legal rate from that date
(s. 71 para. 2).
[64]
At the time the Act was enacted, the Minister
responsible for the Status of Women described it as an implementation statute (Journal
des débats de l’Assemblée nationale, vol. 35, No. 56, 2nd Sess.,
55th Leg., November 21, 1996, at p. 3306), because its purpose was to
uphold the right to pay equity already provided for in the Charter of human rights and freedoms,
S.Q. 1975, c. 6 (now CQLR, c. C‑12) (“Quebec Charter”):
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.
. . .
[65]
In enacting the Act, the legislature chose to go
further than the Quebec Charter and to extend the application of the Act
to employees working in enterprises in which it was impossible to make
comparisons with predominantly male job classes. Indeed, such employees could
not benefit from s. 19 of the Quebec Charter, since comparisons under that section were limited to employees
“who perform equivalent work at the same place”. Although there were of
course male employees in the enterprises in question, their compensation was
also affected by systemic gender discrimination, because they worked in predominantly
female occupations. A comparison with the compensation of male co‑workers
would therefore be of no assistance in ensuring that the enterprise’s female
employees were paid compensation that was free of discrimination.
[66]
Furthermore, under s. 19 of the Quebec
Charter, an employee had to file a complaint and prove that his or her
remuneration was discriminatory. This individual complaint scheme proved
inadequate to address a systemic issue like that of pay equity. In the Act, a
proactive scheme was therefore established under which the employer was
required to review its own situation and ensure that the compensation it paid
was free of prejudice and discrimination.
[67]
Quebec broke new ground when it enacted the Act,
becoming the first province to include private sector enterprises without
predominantly male job classes in the scope of pay equity legislation. However,
a method for determining the adjustments required in such enterprises remained to be
developed. One thing is clear from the reports of expert panels and numerous
consultations: no concrete solution had been proposed
for determining the compensation adjustments required in these enterprises.
[68]
The legislature thus opted to proceed by way of
regulation, as had been recommended by most of the experts and stakeholders who
were consulted. This meant that the Act could be passed quickly so as to
guarantee pay equity for most employees. The Commission de l’équité salariale (“Commission”) (now the
Commission des normes, de l’équité, de la santé et de la sécurité du travail)
could then establish a solution by way of a regulation that would be submitted
to the government to be examined and then made (s. 114 of the Act). The employers concerned would then
have to determine and pay the required compensation adjustments within two
years of the coming into force of the regulation (s. 38 of the Act).
[69]
It took just over five years for the solution in
question to be developed and adopted. There were several reasons for this
delay, as I will explain below. For one thing, the Act required the Commission
to base its solution on job classes in enterprises in which a pay equity plan
had already been completed. The Commission therefore had to wait for the
completion of an initial pay equity exercise before it could start developing
the regulation. Moreover, because of the complexity of the problem, the
Commission had to appoint a consulting firm, produce documents and reports, and
hold various consultations. The Regulation respecting pay equity in
enterprises where there are no predominantly male job classes, (2005) 137
G.O. II, 1425 (now CQLR, c. E‑12.001, r. 2), finally came into
force on May 5, 2005, and the employees to whom it applied were entitled
to compensation adjustments as of May 5, 2007.
II.
Arguments of the Parties
[70]
The appellants represent employees working for
enterprises in which there are no predominantly male job classes, childcare
centres in particular. Under ss. 13, 38 and 114 of the Act, such employees
had to wait until May 5, 2007 to obtain compensation adjustments, whereas
employees of enterprises that had male comparators were entitled to adjustments
as of November 21, 2001.
[71]
The appellants argue that, because the
compensation adjustments were not retroactive to November 21, 2001, this
delay was discriminatory, and contrary to s. 15(1) of the Canadian
Charter of Rights and Freedoms (“Charter ”). They add that it cannot
be justified under s. 1 , because it did not have a pressing and
substantial objective and was not proportional having regard to its effects.
[72]
The legislative provision the appellants are
challenging is s. 38 of the Act, which provides that the payment of
adjustments to employees working in enterprises with no predominantly male job
classes would depend on the date when the regulation was made. The appellants
submit that s. 38 is unconstitutional because the legislature did not
provide that the compensation adjustments would be retroactive should the
regulation’s coming into force date cause a delay in relation to the
adjustments granted to employees working in enterprises with predominantly male
job classes. Thus, what is in issue is the absence of retroactivity, not a
failure on the government’s part to act promptly to make its regulation under
s. 114.
[73]
The appellants ask this Court to declare s. 38
of the Act to be invalid and of no force or effect. The time limit provided for
in s. 37 would therefore apply to the employees they represent, who could
then obtain compensation adjustments retroactive to November 21, 2001.
[74]
The respondent submits that s. 38 of the
Act does not create a discriminatory distinction based on an enumerated or
analogous ground under s. 15(1) of the Charter . Even if it did,
which the respondent denies, the distinction would be saved by s. 15(2) of
the Charter . The respondent also argues that s. 38 is a reasonable
limit prescribed by law that can be demonstrably justified under s. 1 of
the Charter .
III.
Judicial History
[75]
Following an exhaustive review of the evidence,
Yergeau J. of the Quebec Superior Court, in a very well‑reasoned judgment,
concluded that s. 38 of the Act should not be declared to be invalid, and
dismissed the appellants’ application. He found on a balance of probabilities
that the distinction created by that section was based not on sex, but on the
fact that the enterprises in question had no predominantly male job classes
that would allow for comparison. The delay had been caused by difficulties
flowing from this reality, not by any negligence or failure to act on the
government’s part (paras. 137‑38, 198 and 242).
[76]
Yergeau J. identified a number of factors
that accounted for the delay in developing a method for calculating the
necessary compensation adjustments for employees holding positions in
enterprises with no male comparators:
[translation] A variety of factors,
including (a) the delay in implementing equity in [enterprises with male
comparators] as in the government itself, (b) the novel character of the
application of equity to [enterprises with no male comparators], (c) a
lack of Canadian legislative precedents, (d) the very structure of
section 114 of the Act, (e) the scheme of the [Act], under which pay
equity is not meant to become an exercise in levelling compensation by
importing salary structures from one enterprise to another, (f) a lack of
concrete suggestions from labour organizations and certified associations, and
(g) the 2003 decision not to amend section 114 of the Act for
strategic reasons, caused the Regulation respecting pay equity to be delayed.
[para. 137]
[77]
Yergeau J. also found that s. 38 of
the Act did not have a discriminatory impact, as it did not perpetuate
prejudice or a stereotype. On the contrary, the legislature had recognized from
the outset the systemic discrimination that affected employees holding
positions in enterprises with no male comparators, and had chosen to confer the
protection of the Act on this group that previously had no remedy under
s. 19 of the Quebec Charter. He argued that this was the opposite
of prejudice.
[78]
Section 38 of the Act was therefore valid
and consistent with s. 15(1) of the Charter .
[79]
The Quebec Court of Appeal, per Vézina, St‑Pierre
and Émond JJ.A., upheld the trial judge’s decision and expressed complete
agreement with his reasons (2016 QCCA 424).
IV.
Issue
[80]
The main issue is whether, because the
compensation adjustments were not to be paid retroactively, the additional time
that was needed to establish a method of calculation to be applied by
enterprises with no male comparators in order to implement pay equity violated
the right to substantive equality guaranteed by s. 15(1) of the Charter .
V.
Background and Legislative History
[81]
As McIntyre J. noted in Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143:
. . . the
greatly expanded role of women in all forms of industrial, commercial and
professional activity led to much inequality and many forms of discrimination.
[p. 172]
[82]
Women historically faced disadvantages in the
labour market, both in hiring and in the performance of their duties. These
disadvantages were reflected in part in their conditions of employment and in
their remuneration, which was often less than that of their male co‑workers:
this constituted systemic discrimination. Thus, less value was attached to work
associated with women than to work associated with men even where, objectively,
the work was of equal value.
A.
Origins of the Pay Equity Act
[83]
In 1951, in an effort to remedy this problem,
the International Labour Organization adopted the Convention concerning
Equal Remuneration for Men and Women Workers for Work of Equal Value
(No. 100), Can. T.S. 1973 No. 37, which laid down the fundamental
principle of equal pay for work of equal value (art. 2). In this
convention, each member state undertook to take measures to ensure the
objective appraisal of all jobs on the basis of the work to be performed
(art. 3) rather than of prejudice. Canada ratified the convention in 1972,
and it is also a party to several other international instruments that reaffirm
this principle, including the International Covenant on Economic, Social and
Cultural Rights, Can. T.S. 1976 No. 46, adopted by the United
Nations General Assembly (accession in 1976) and the Convention on the
Elimination of All Forms of Discrimination against Women, Can. T.S. 1982
No. 31 (ratification in 1981).
[84]
In Canada, Ontario was the first province to
enact pay equity legislation, which it did in 1951 with The Female Employees
Fair Remuneration Act, 1951, S.O. 1951, c. 26. Quebec followed suit in
1964 in enacting the Act respecting discrimination in employment, S.Q.
1964, c. 46, which provided for an individual remedy in cases involving
discrimination in hiring or in conditions of employment.
[85]
Those statutes addressed the most obvious cases
of discrimination, but they did not create a right to equal pay for work of
equal value. Quebec would be the first province to act in this regard when it
enacted the Quebec Charter on June 27, 1975:
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.
. . .
[86]
However, it quickly became clear that wage
discrimination was a systemic problem that could not be resolved by means of
the individual remedy provided for in the Quebec Charter:
[translation]
Although the Charter can
be used to rectify certain situations, its overall impact on the achievement of
pay equity is thus limited.
(Comité
d’élaboration du projet de loi, Document d’orientation: Une loi proactive
sur l’équité salariale (1995) (“Policy Paper”), reproduced in A.R.,
vol. III, at p. 11.)
[translation]
. . . this path is inappropriate in the face of a problem that
is systemic, that is, that reflects widespread and enduring practices and behaviours in the labour
market.
(Comité de consultation en regard à la loi proactive sur l’équité
salariale, Rapport final: Une loi proactive sur l’équité salariale (1995)
(“Final Report”), reproduced in A.R., vol. III, at
p. 84.)
[87]
In addition, although s. 19 of the Quebec Charter
made it possible for an employee to file an individual complaint, such a
complaint involved a process that was slow, costly and largely inaccessible to
women who were not represented by a union (Journal des débats de la
Commission des affaires sociales (February 6, 1996), at pp. 1‑2).
This process had the perverse effect of entailing individual confrontations
between the employer and the employee concerned. Pay equity legislation would
shift the burden and would place the employer under an obligation to pay non‑discriminatory
compensation to everyone without a complaint or a remedy being needed.
[88]
In 1992, following a public consultation, the
Commission des droits de la personne acknowledged the limitations of the
complaint scheme under the Quebec Charter and recommended the enactment
of proactive pay equity legislation (Journal des débats de la Commission des
affaires sociales (February 6, 1996), at p. 2). The Secrétariat à
la condition féminine then set up a committee of experts for the preparation of
a bill. In June 1995, this committee submitted the Policy Paper to the
responsible minister; it, too, recommended the enactment of proactive pay
equity legislation and identified the major elements such legislation should
include. The Policy Paper’s content formed the basis for the current Act.
[89]
At the time, similar proactive legislation was
already in force in several Canadian provinces, including Manitoba (1985),
Ontario (1987), Nova Scotia (1988), Prince Edward Island (1988), Newfoundland
(1988), New Brunswick (1989) and British Columbia (1995). Ontario’s pay equity
statute was the only one of these that applied to the private sector as the
committee proposed in the Policy Paper. However, the committee noted that
Ontario, on whose experience it was drawing because of that province’s
pioneering role in pay equity, had preferred to exclude private businesses with
no male job classes from the scope of its legislation.
[90]
The authors of the Policy Paper asserted that
the Act should have the broadest possible scope. They therefore recommended
going further than the Ontario legislation and the Quebec Charter and
targeting enterprises with no male comparators. The committee of experts
acknowledged that this objective would be difficult to achieve, though:
[translation]
On this subject, it is important to note from the outset that in an economy
like ours, the general determination of compensation is a decentralized
process. Each enterprise is free to fix the compensation that will be paid
to its employees, and even when enterprises are unionized, conditions of employment
are negotiated with each employer separately. This is in fact why the first
legislative provisions on pay equity confined this exercise to the enterprise
itself. But it goes without saying that in the context of female job ghettos,
pay equity cannot be achieved within the enterprise. Therefore, unless a
completely different solution is applied, for example raising the minimum wage,
it must be acknowledged that achieving pay equity in such enterprises requires
going outside the enterprise.
(Policy
Paper, at p. 33)
[91]
While some possible solutions were touched on,
they were not examined in detail, and the committee of experts proposed no
concrete solution in this regard in its recommendations. The committee
therefore arrived at the following final recommendation, which it is important
to reproduce in full:
[translation]
5‑ that,
in the case of private sector enterprises in which there are no, or not enough,
male jobs to serve as comparators for all the female jobs, the responsible
authority recommend formulas for compensation adjustments for those jobs in a
report to be submitted to the responsible minister, which must be the subject
of consultations with the enterprises concerned, and that the appropriate
formulas then be prescribed by a government regulation, which may also set the
time limit for the enterprises in question to make the first compensation
adjustments on this basis;
(Policy
Paper, at p. 64)
[92]
In short, if the goal was for the Act to apply
to enterprises in which there were no predominantly male job classes,
additional time would be needed in order to consider and develop a method of
comparison for such enterprises.
[93]
A second committee held a public consultation in
which about 30 women’s organizations, unions, employer organizations,
representatives of cultural communities, and compensation experts participated. The Final Report was submitted to the responsible minister on
December 1, 1995. In it, the provisions the committee believed should be
included in the legislation were set out and explained. The recommendation
concerning enterprises without internal male comparators remained essentially
unchanged:
[translation]
[Recommendation No. 23] In
the case of private sector enterprises in which there are no, or not enough,
predominantly male job titles to serve as comparators for all the predominantly
female jobs, the Commission de l’équité salariale will recommend formulas for
compensation adjustments for those jobs in a report to be submitted to the
responsible minister. That report must be the subject of consultations with
enterprises, employees or their representatives, and women’s groups. The
appropriate formulas will then be prescribed by a government regulation, which
may also set the time limit for the enterprises in question to make the first
compensation adjustments on this basis.
(Final
Report, at pp. 123 and 170)
[94]
Once again, although certain solutions were
mentioned, it was expressly acknowledged that there was a need for additional
research and analysis, which would inevitably cause delays:
[translation]
In any event, this issue of a
lack of male comparators is very important, and the examples given above
illustrate its complexity. Identifying possible answers in this regard would
require in‑depth studies and analyses, and the committee had neither
the time nor the resources to conduct them. The committee is therefore of
the view that one of the first tasks of the Commission de l’équité salariale
should be to do research or have research done on the issue. For now, the
committee can only outline some possible options, such as the ones mentioned
above.
(Final
Report, at pp. 125‑26 (emphasis added).)
[95]
Two important conclusions can be drawn from the
Policy Paper and the Final Report. First of all, the importance of including
employers without predominantly male job classes in the scope of the Act was
recognized. Including them would guarantee pay equity and a discrimination‑free
workplace for as many employees as possible. Next, the authors of the Final
Report also recognized the importance of comparing compensation strictly within
an enterprise. Indeed, this was one of two fundamental principles that were
recommended in that report:
[translation]
The proactive legislation is thus centred around two fundamental principles:
(1) What must be compared is the value of the
jobs, not the value of the individuals who perform them. To avoid gender bias,
remuneration must be based on the content of a job, not on the gender of those
who hold it.
(2) Predominantly female jobs and predominantly
male jobs must be compared within a single employer’s enterprise. The purpose
of pay equity between men and women is not to establish uniform rates of
remuneration for all enterprises, as, for example, the minimum wage decree
does, but to equalize the remuneration of equivalent predominantly female jobs
and predominantly male jobs within a given enterprise. Pay equity thus requires
an internal comparison exercise.
(Final Report, at p. 89)
[96]
It is important to note that this second
principle seemed to be essential to reconciling the interests at stake. For
most of the groups representing employees, it was important that the
legislation have a broad scope, that it be as close to universal as possible. They were therefore in favour of having the Act apply to employers
that did not have male comparators. Some of them also asked that the provision
of the draft bill be amended to require the Commission to make a regulation, as
opposed to merely authorizing it to do so. In addition, they wanted there to be
a time limit for making the regulation. The legislature did not adopt these
last two proposals, however (s. 114 of the Act).
[97]
Employer representatives were reluctant to have
the calculation of the adjustments based on external comparators. As was noted
in the Final Report, it is each employer’s prerogative to fix the compensation
it offers or might offer in its enterprise, provided that the compensation is
not discriminatory.
[98]
Between the introduction of the draft bill on
December 15, 1995 and the passage of the bill on November 21, 1996,
the National Assembly’s standing committee on social affairs held a general
consultation in February 1996[7]
and special consultations in August 1996,[8] and the bill was then studied in committee.[9] As Yergeau J. aptly noted, the reception was lukewarm, and the
bill was [translation] “endorsed
by neither employers nor unions” (para. 61).
[99]
The transcripts of the consultations show that,
once again, few concrete solutions were proposed. Indeed, as Yergeau J.
stated, [translation] “the issue
of how to go outside the enterprise to find male comparators without importing
external wage structures remained unresolved at the end of the general
consultation and for a long time afterwards” (para. 63).
[100]
In the end, when the legislation was passed, it
reiterated, with very few changes, the recommendation from the Policy Paper and
the Final Report regarding the development of compensation adjustment formulas
for enterprises with no male comparators:
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.
B.
Origins of the Regulation respecting pay equity
in enterprises where there are no predominantly male job classes
[101]
Once the Act came into force, therefore, the
Commission had to develop a method for determining the required compensation
adjustments for enterprises in which there were no predominantly male job
classes. This promised to be difficult, as there was at the time no legislative
precedent in Canada it could use as a model.
[102]
It should first be mentioned that the Act did
not give the Commission carte blanche in preparing the regulation. The
method the Commission adopted for determining typical job classes had to be
based on “enterprises in which adjustments in compensation have already been
determined” (s. 114 para. 1(1)).
[103]
Although some preliminary work was started, the
Commission had to wait until adjustments had been completed by other employers
before it could begin preparing the regulation, which, in principle, was to be
completed by November 21, 2001. The president of the Commission confirmed
this in a letter dated April 1999:
[translation]
. . . the Commission has, in the past few months, begun
conducting studies on various workplaces in which there are no predominantly
male job classes. This complex work cannot be completed quickly, because
identified job classes in enterprises in which compensation adjustments have
already been determined must be taken into account. Nevertheless, the necessary
research must lead as quickly as possible to the drafting of a regulation.
(Reproduced
in A.R., vol. VI, at p. 5.)
[104]
Thus, priority had to be given to the pay equity
exercise in enterprises with male comparators. However, that exercise was not
completed within the time provided, and as of November 21, 2001, fewer
than 50 percent of the enterprises had finished it (trial judge’s reasons,
at paras. 95‑96).
[105]
In October 2001, the Commission hired a
consulting firm, Gestion‑Conseil Loran inc. (“Loran”), to develop a
method that would allow enterprises to valuate differences in compensation
where there are no male comparators. Loran undertook to complete this work by
December 15, 2001. The Commission thus expected to receive Loran’s report
less than a month after the other enterprises with 10 or more employees had
completed the pay equity exercise.
[106]
Loran finally submitted its report on
February 18, 2002. It analyzed several possible solutions and ultimately
proposed a six‑step method. However, the proposed method was judged to be
[translation] “far too complex
. . . as . . . Martine Bégin testified when examined at
length on this point” (trial judge’s reasons, at para. 108).
[107]
The Commission therefore wanted to explore other
possible options. On July 18, 2002, it published a consultation paper
entitled Proposition d’approches en l’absence de comparateur masculin in
which it proposed three approaches. At a meeting of the consultation committee
on August 30, 2002, two of the proposed approaches were rejected, and the
committee agreed to confine itself to the third approach, that of the
assignment of comparators (segmentation approach).
[108]
A new consultation paper that focused solely on
the assignment of comparators method was then published on October 16,
2002. The disadvantage of this approach was that it was incompatible with the
Commission’s power to make regulations, as provided, and would therefore
require an amendment to s. 114 of the Act.
[109]
The question was submitted to the National
Assembly’s Standing Committee on Labour and the Economy for a general
consultation on February 11 and 12, 2003, from which a consensus emerged: the
stakeholders did not want the Act to be amended. Yergeau J. summed up the
situation as follows:
[translation] The transcript of those two
days of consultations shows that what happened on that occasion was a dialogue
of the deaf between the government, which suggested amending section 114
of the Act in order to expedite the making of the regulation, and the unions,
which asked the government to make a regulation first and then determine
afterwards whether the Act needed to be amended. Bottom line, the [Act] was not
amended, and the method developed by the Commission with the support of the
consultation committee was discarded. [para. 117]
[110]
Thus, the contemplated solution was ruled out,
and right after the general consultation, the Commission had to start all over again
(trial judge’s reasons, at para. 119).
[111]
In the summer of 2003, the Commission’s
consultation committee turned to an entirely new approach that entailed using
generic predominantly male job classes to make the comparison. According to
this method, the employer was to establish wage curves for the compensation it
would give a maintenance worker and a foreman if these job classes existed in
its enterprise. These fictitious classes would then be used for comparison with
the existing predominantly female job classes in the enterprise. This method
thus made it unnecessary to resort to external comparators, and it was
compatible with the power to make regulations under the Act.
[112]
In September 2004, this approach was adopted and
a proposed regulation was published in the Gazette officielle du Québec. The
Commission held a public consultation on November 2, 3 and 4, and on
November 24, the proposed regulation was submitted to the Standing
Committee on Labour and the Economy, which approved it. The regulation was finally
made on May 5, 2005, and it came into force on that same day. The
enterprises concerned then had two years to determine the required compensation
adjustments and begin paying them in accordance with the Act (s. 38).
VI.
Analysis Under Section 15 of the Charter
[113]
My analysis under s. 15 of the Charter is
guided by the social context and legislative history set out above. Section 15 reads as follows:
15. (1) 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.
(2)
Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
[114]
This Court considered s. 15(1) of the Charter
for the first time in Andrews, in which McIntyre J., writing
for the majority on this issue, defined discrimination as follows:
I
would say then that discrimination may be described as a distinction, whether
intentional or not but based on grounds relating to personal characteristics of
the individual or group, which has the effect of imposing burdens, obligations,
or disadvantages on such individual or group not imposed upon others, or which
withholds or limits access to opportunities, benefits, and advantages available
to other members of society. Distinctions based on personal characteristics
attributed to an individual solely on the basis of association with a group
will rarely escape the charge of discrimination, while those based on an
individual's merits and capacities will rarely be so classed. [pp. 174‑75]
[115]
In Andrews, the Court considered
several possible approaches to the analysis required by s. 15(1)
(pp. 178‑83). McIntyre J. began by expressly rejecting an
approach according to which every distinction drawn by law constitutes
discrimination and must be considered under s. 1 of the Charter ,
arguing that to adopt it “would be to trivialize the fundamental rights
guaranteed by the Charter and deprive the words ‘without discrimination’
in s. 15(1) of any content and, in effect, to replace s. 15(1) with
s. 1 ” (p. 162). Moreover, the Charter cannot require that the
legislature justify every distinction under s. 1 (p. 181).
McIntyre J. also rejected an approach involving a consideration of the
reasonableness and justifiability of the legislation under s. 15(1) , which
would leave no role for s. 1 . In the end, he adopted a third approach:
The
analysis of discrimination in this approach must take place within the context
of the enumerated grounds and those analogous to them. The words “without
discrimination” require more than a mere finding of distinction between the
treatment of groups or individuals. Those words are a form of qualifier built
into s. 15 itself and limit those distinctions which are forbidden by the
section to those which involve prejudice or disadvantage. [pp. 180‑81]
[116]
Andrews is the
seminal case on the interpretation of s. 15(1) , and the principles laid
down in it by McIntyre J. have been confirmed and clarified in several
subsequent decisions of the Court (Law v. Canada (Minister of Employment and
Immigration), [1999] 1 S.C.R. 497, at para. 22 ; R. v. Kapp,
2008 SCC 41, [2008] 2 S.C.R. 483, at para. 14; Withler v. Canada
(Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at
paras. 29 et seq.; Quebec (Attorney General) v. A, 2013 SCC 5,
[2013] 1 S.C.R. 61, at para. 319). What can be drawn from those cases is
that s. 15(1) guarantees for every person
substantive equality as opposed to mere formal equality under the law (Andrews,
at pp. 163‑65; Kapp, at
paras. 16 and 20; Withler, at para. 2; Alberta (Aboriginal
Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2
S.C.R. 670, at para. 38; Quebec v. A, at para. 325; Kahkewistahaw
First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at
para. 17). This guarantee is rooted in a recognition of the fact that
persistent systemic disadvantages have operated to limit the opportunities
available to members of certain groups in society. The purpose of the Charter
provision is thus to prevent conduct that perpetuates those discriminatory
disadvantages (Taypotat, at para. 17; Quebec v. A, at
para. 320).
[117]
The main issue under s. 15(1) is whether
the impugned law violates this Charter guarantee of substantive equality (Withler, at para. 2). It is therefore
necessary to apply the two‑step analytical framework laid down by the
Court and ask the following two questions: (1) Does the law create a
distinction based on an enumerated or analogous ground? and (2) Does the distinction
create a discriminatory disadvantage by, among other things, perpetuating
prejudice or stereotyping? (Kapp, at para. 17; Withler, at
paras. 30 and 61; Quebec v. A, at para. 324). In this analysis, the main consideration must be the impact of the
law (Andrews, at
p. 165; Quebec v. A, at para. 319).
A.
First Step of the Section 15(1) Analysis
[118]
At the first step of the analysis, it must be
determined whether, on its face or in its impact, a law creates a distinction
on the basis of an enumerated or analogous ground (Taypotat, at
para. 19). Accordingly, the courts will address only those grounds of
distinction that were intended to be prohibited by the Charter (Withler,
at para. 33).
[119]
As the trial judge indicated, s. 38 of the
Act clearly makes a distinction by postponing the payment of
compensation adjustments to May 5, 2007:
[translation]
In the case at bar, however, section 38 of the Act, by allowing the
payment of compensation adjustments to female employees in enterprises with no
male comparators to be put off until May 5, 2007, had the effect of
treating such employees differently, for some time, than those working in
enterprises with comparators. The plaintiffs argue that, had it not been for
section 38, these employees would, the belated coming into force of the
Regulation respecting pay equity notwithstanding, have received an adjustment
retroactive to December 21, 2001.
. . .
Furthermore,
this was an adverse distinction for them, insofar as the making of the
Regulation respecting pay equity was a long time coming, thereby depriving them
of more than five years of retroactive compensation adjustments. [Emphasis deleted; paras. 192‑93.]
[120]
The question of the basis for that distinction
requires that it be determined whether the impugned law has a disproportionate
effect on employees working in enterprises without predominantly male job
classes that is “based on [their] membership in an enumerated or
analogous group” (Taypotat, at para. 21 (emphasis added)).
[121]
By establishing different time limits, the Act
had an adverse impact on employees working in enterprises in which
comparisons with predominantly male job classes are impossible. This group
consists mostly of women and is at a particular disadvantage in the labour
market, which may suggest that these women are being treated differently
because of their sex. However, to resolve this issue, we must go further and
ask what the basis for this differential treatment is.
[122]
In the case at bar, I am of the opinion that the
distinction is not based on sex, because the differential treatment does not
result from the fact that the affected employees are women. In this regard, 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 in the lack
of male comparators in their employers’ enterprises.
[123]
Contrary to what my colleague Abella J.
asserts, this does not amount to adopting a formal equality approach as in Bliss v. Attorney General of Canada,
[1979] 1 S.C.R. 183. Indeed, it has since been established that s. 15(1)
grants every person a guarantee of substantive equality, not just of formal
equality, under the law.
[124]
In Bliss, a woman was denied unemployment
insurance benefits to which she would have been entitled had she not been
pregnant. Her claim was rejected by the Court then on the basis that the
distinction was based not on sex, but on pregnancy. This approach has since
been specifically rejected in Andrews, in which McIntyre J. commented as
follows regarding the analysis that is required in order to determine the basis
for a distinction:
I would also agree with the following
criticism of the similarly situated test made by Kerans J.A. in Mahe v.
Alta. (Gov't) (1987), 54 Alta. L.R. (2d) 212, at p. 244:
. . .
the test accepts an idea of equality which is almost mechanical, with no scope
for considering the reason for the distinction. In consequence,
subtleties are found to justify a finding of dissimilarity which reduces the
test to a categorization game. Moreover, the test is not
helpful. After all, most laws are enacted for the specific purpose of
offering a benefit or imposing a burden on some persons and not on others. The
test catches every conceivable difference in legal treatment.
For
the reasons outlined above, the test cannot be accepted as a fixed rule or
formula for the resolution of equality questions arising under the Charter .
Consideration must be given to the content of the law, to its purpose, and
its impact upon those to whom it applies, and also upon those whom it excludes
from its application. The issues which will arise from case to case are such
that it would be wrong to attempt to confine these considerations within such a
fixed and limited formula. [Emphasis added; p. 168.]
[125]
This passage reiterates the importance of taking the context into consideration
in order to determine the real reason for the distinction. After thoroughly
reviewing the evidence, Yergeau J. concluded that
the distinction created by s. 38 of the Act is based not on sex, but on
the fact that the enterprises to which it applies do not have predominantly
male job classes that would allow for comparison.
[126]
My colleague Abella J.
instead focuses in her reasons on the basis for the distinction drawn by the
Act as a whole (paras. 24‑25). But the provision being challenged by
the appellants is s. 38 of the Act. It is thus the reason for the
distinction established in that section, not the reason for the distinction the
Act is intended to eliminate as reflected by its purpose, that must be
identified at this step. My colleague does identify the real reason for the
distinction in stating that s. 38 targets a particular group on the basis of
where they work (para. 24). Her reasoning can lead to only one
conclusion: that every distinction in a pay equity statute is necessarily based
on sex.
[127]
The alleged violation is based on the principle
that the legislature is, when it acts proactively, under a constitutional
obligation not to be discriminatory in how it treats those who are meant to
benefit from the law. But the distinction in this case is not based on sex, as
the comparator group is not that of male employees, to whom the Act does not
apply. 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. Hence, the distinction resulting from s. 38 cannot be rooted in
the gender‑based discrimination that the Act is as a whole intended to
remedy.
[128]
A pay equity statute grants rights to a group
consisting essentially of women. Like any other statute, it may make
distinctions, and such distinctions can be more advantageous for one group
consisting of women than for another group also consisting of women. However,
we cannot conclude 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. On the contrary, it must be possible to
show on a balance of probabilities that the distinction in question is based
not on sex, but on another, perfectly legitimate ground.
[129]
McIntyre J. stated the following in Andrews:
It
is not every distinction or differentiation in treatment at law which will
transgress the equality guarantees of s. 15 of the Charter . It is,
of course, obvious that legislatures may — and to govern effectively — must
treat different individuals and groups in different ways. Indeed, such
distinctions are one of the main preoccupations of legislatures. The
classifying of individuals and groups, the making of different provisions
respecting such groups, the application of different rules, regulations,
requirements and qualifications to different persons is necessary for the
governance of modern society. As noted above, for the accommodation of
differences, which is the essence of true equality, it will frequently be
necessary to make distinctions. What kinds of distinctions will be acceptable
under s. 15(1) and what kinds will violate its provisions? [pp. 168‑69]
[130]
In the instant case, I
agree with Yergeau J.’s analysis and accordingly conclude that s. 38 does not create a distinction based on sex. It therefore should not be declared to be
invalid under the Charter .
[131]
This conclusion is in and of itself sufficient
to dispose of the appeal. In light of the evidence before him, however,
Yergeau J. preferred to discuss the second step of the s. 15(1) analysis,
and I will therefore also consider this step, which, once again, confirms the
validity of s. 38.
[132]
In theory, we must conduct the analysis under s.
15(2) of the Charter before turning to the second step of the s. 15(1)
analysis (Kapp, at para. 40; Cunningham, at para. 44).
But given my conclusion 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).
B.
Second Step of the Section 15(1) Analysis
[133]
The distinction made in s. 38 of the Act
does not have a discriminatory impact.
[134]
A statute is not necessarily invalid because it
makes distinctions (Andrews, at p. 167; Kapp, at
para. 28; Withler, at para. 31). On the contrary, drawing
distinctions is essential to the effective operation of our governments. That
is why s. 15(1) guarantees the equal benefit of the law to every
individual “without discrimination”. This qualifier prohibits only those
distinctions that are discriminatory. The claimant must therefore prove that
the law creating a distinction has a discriminatory impact in that it
perpetuates a disadvantage faced by the group in question (Andrews, at
p. 181; Kapp, at para. 28; Withler, at paras. 31‑34;
Quebec v. A, at para. 322; Taypotat, at para. 20):
. . . the claimant’s burden under the Andrews test is to
show that the government has made a distinction based on an enumerated or
analogous ground and that the distinction’s impact on the individual or group
perpetuates disadvantage.
(Quebec v. A, at para. 323)
The words “without discrimination” require more
than a mere finding of distinction between the treatment of groups or
individuals. Those words are a form of qualifier built into s. 15 itself and limit those distinctions which are
forbidden by the section to those which involve prejudice or disadvantage.
(Andrews,
at pp. 180‑81)
[135]
What must be done at
this stage of the analysis is to consider the situation of the group’s members
and the law’s impact on them. “The analysis is contextual, not formalistic,
grounded in the actual situation of the group and the potential of the impugned
law to worsen their situation” (Withler, at para. 37; Quebec v.
A, at para. 331). State conduct that widens the gap between a
historically disadvantaged group and the rest of society will be found to be
discriminatory (Quebec v. A, at para. 332).
[136]
In Law, four contextual factors were
identified that might be relevant in determining whether a law is
discriminatory: (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. It is not always necessary to expressly
canvass every one of these factors, and there will be cases in which other
factors might also be pertinent (Law, at para. 62; Withler,
at para. 66; Quebec v. A, at para. 331).
(1)
Nature of the Affected Interest
[137]
The importance of the right at issue in the case
at bar 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. The Court has said the following in this regard:
Work is an important part of life. For many
people what they do for a living, and the respect (or lack of it) with which
their work is regarded by the community, is a large part of who they are. Low
pay often denotes low status jobs, exacting a price in dignity as well as
dollars. As such, the interest affected by the Act was of great importance.
(N.A.P.E.,
at para. 49)
(2)
Pre‑existing Disadvantage
[138]
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.
The fact that there is pre‑existing prejudice is relevant to the
s. 15(1) analysis (Withler, at para. 38; Quebec v. A,
at para. 327; Taypotat, at para. 21) and requires that
particular attention be paid to the distinctions that affect the
group. But it does not give rise to a presumption that a distinction is
discriminatory (Law, at para. 67).
(3)
Correspondence With Actual Characteristics
[139]
What must be asked, therefore, is whether the
Act and the time limits it establishes reflect the actual capacities and
needs of the members of the affected group or, instead, impose a burden on them
or deny them a benefit in a
manner that has the effect of reinforcing, perpetuating or exacerbating their
disadvantage (Taypotat, at para. 20; see also Law, at
para. 70).
[140]
In this case, 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 legislature, which was not required
to intervene under s. 15(1) of the Charter , chose to do so, after
extensive consultations, to redress these differences. In the Act, it established
a mechanism for achieving pay equity and set various applicable time limits. It
is important to bear in mind that the systemic discrimination at issue in this
case was not caused by the legislature’s actions. On the contrary, the Act has
an ameliorative effect and does not have the effect of perpetuating that
systemic discrimination.
[141]
My colleague McLachlin
C.J. asserts that when the legislature enacted the Act, it sent to the members
of the group represented by the appellants a message that the systemic
discrimination in their jobs was their problem (para. 156). I disagree
with this assertion, which in my view disregards the effect the Act has
actually had on that group.
[142]
In enacting the Act,
the legislature was responding directly to the needs of the members of the
group represented by the appellants. It set up a proactive scheme that, once
completed, made it possible to redress differences in compensation due to
systemic gender discrimination. In so doing, it narrowed the gap that had
existed between the employees in question and the rest of society for far too
long. In order to extend that right to as many people as possible, the
legislature chose to include employees working in enterprises with no male
comparators. In the Act, it recognized the discrimination faced by the members
of that group. When the Act was enacted in 1996, Quebec became the first
province to tackle this problem. An initiative such as this that is designed to
enhance substantive equality should be encouraged and praised. This is all the
more true given that the Act continues today to be one of the most ambitious in
the country.
[143]
However, it was also
recognized from the outset that, if the intention was for the Act to apply to
the group in question, more time would be needed to develop an adequate method
for calculating compensation adjustments. Proceeding by way of a regulation
thus made it possible to develop a simple and innovative method for redressing
differences in compensation in enterprises with no male comparators.
[144]
In sum, the Act has an
undeniably ameliorative effect on the employees in question. My colleagues’
analysis leads to the conclusion that any ameliorative measure adopted by the
legislature that does not result in perfect equality would infringe s. 15(1) .
On the contrary, given that the problem existed and persisted in the private
sector, and given that it would have been perfectly valid from a constitutional
standpoint for the legislature not to intervene, any measure that ameliorates
the conditions of this group will necessarily respond to its needs. Even if a
solution is not necessarily perfect and does not totally eliminate the
disadvantage suffered by the group, only an intervention that would damage or
exacerbate the group’s situation would be discriminatory.
(4)
Impact on Other Groups
[145]
Lastly, an essential
factor to consider is the significant positive effect of the Act on many
other employees who also have pre‑existing disadvantages:
Where the impugned law is part of a larger
benefits scheme . . . the ameliorative effect of the law on
others and the multiplicity of interests it attempts to balance will also
colour the discrimination analysis [under s. 15(1) ].
(Withler,
at para. 38)
[146]
When the Act was being drafted, the groups
representing female employees sent the legislature a clear message: it had to
act quickly. The legislature therefore chose to enact the Act quickly, thus
guaranteeing pay equity for a large number of employees working in more than
225,000 enterprises in Quebec (trial judge’s reasons, at para. 46). The
decision to do so obviously had a significant positive effect on those
employees. At the same time, it was decided that the case of employers that
have no predominantly male job classes would be dealt with by way of a
regulation. Very few stakeholders objected to this approach. The comments
of the Conseil du statut de la femme on this point are instructive:
[translation]
There have also been calls for the legislation to apply to enterprises
with fewer than 10 employees as well as for including a solution to the
specific case of job ghettos. But everyone agrees that these two issues will
not be easily resolved. We instead believe that rather than depriving a large
majority of female workers of the benefits of such a statute, it is preferable
to proceed right away. As indicated in the draft bill, however, we will have to
go straight to work to address this serious deficiency.
(Journal
des débats de la Commission des affaires sociales, vol. 34,
No. 39, 1st Sess., 35th Leg., February 15, 1996, at pp. 2‑3)
[147]
It would have been disadvantageous and unfair
for female Quebec employees as a whole had the enactment of the Act been
postponed for several years in order to identify a method for calculating
compensation adjustments that could apply to employers with no male
comparators. 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. That is why an obligation of result cannot be imposed
on the legislature in this regard. Such an obligation would cause it to show
extreme caution and even, in some instances, to postpone the enactment of
legislation, to everyone’s detriment.
[148]
The decision to proceed by way of regulation
enabled the legislature to take the necessary time to develop an innovative,
simple and practical method for valuating differences in compensation for
employers that have no predominantly male job classes. The adoption of that
method meant that it was not necessary to have recourse to external comparators
or to import a salary structure that was foreign to the enterprise.
[149]
The legislature was entitled to proceed as it
did. The different time limits provided for in the Act do not perpetuate
prejudice or a stereotype. On the contrary, the legislature recognized the
existence of discrimination and did what was necessary to rectify it. The
situations of some of the groups concerned were different and therefore required
different methods. The result of this reality may very well be that the Act
provides for different time limits or even different procedures. Nevertheless,
the Act does not have a discriminatory impact, as it instead narrows the gap
between these historically disadvantaged groups and the rest of society.
[150]
In this case, as the Court put it in Withler,
differential treatment was required in order to ameliorate the actual situation
of the group represented by the appellants, as well as that of the other groups
to which the section applies (para. 39). That differential treatment also
enabled Quebec to be the first Canadian province to guarantee pay equity in
private sector enterprises that had no male comparators.
[151]
My colleague Abella J. maintains that the
reasoning adopted in Vriend v. Alberta, [1998] 1 S.C.R. 493, should apply
in the instant case. In Vriend, the Individual’s Rights Protection
Act, R.S.A. 1980, c. I‑2, had in 1990 prohibited discrimination
based on any of the following grounds: race, religious beliefs, colour, gender,
physical disability, mental disability, age, ancestry or place of origin. The
statute had subsequently been amended to add other grounds to the existing
ones, namely marital status, source of income and family status. The Individual’s
Rights Protection Act established a remedy for all members of society so
that they could avail themselves of any of the grounds of discrimination
provided for in the statute. However, the Alberta government had not deemed it
necessary to include sexual orientation in the statute as a prohibited ground.
Individuals who were discriminated against on the basis of their sexual
orientation were therefore excluded from the protection of the statute and
found themselves worse off than they had been before it came into force, given
that they were not protected by the statute as were other disadvantaged groups.
As a result, the gap between their situation and that of the rest of society
widened and their marginalization increased. In short, society had moved
forward, but their situation remained unchanged. Unlike
a general protection scheme, such as the one established by the Individual’s
Rights Protection Act, the scheme established by the Act in the case at bar
deals with only one ground of discrimination, namely sex, and applies to only a
small group of employees in Quebec, those who hold positions in predominantly
female job classes in enterprises with 10 or more employees. The analogy my colleague is trying to draw cannot therefore be
accepted, nor is it even desirable; and it is irrelevant. Moreover, the
situation of the employees in question is alleviated by
the fact that they belong to the group benefiting from the Act that is challenging its effects. This means that it cannot be argued that they do not receive “the
equal protection and equal benefit of the law” (s. 15(1) of the Charter ).
Also, unlike the statute that was at issue in Vriend, the Act has an
undeniably ameliorative effect for the employees the appellants represent, and
it helps narrow the gap between them and the rest of society.
[152]
I therefore conclude that the impugned provision
does not create a disadvantage by perpetuating prejudice or by stereotyping and
does not have a discriminatory impact. The second condition has accordingly not
been met. Although my conclusion with respect to s. 15(1) of the Charter
means that I need not deal with s. 15(2) , my silence should not be
interpreted as an endorsement of my colleague Abella J.’s comments on
s. 15(2) .
VII.
Conclusion
[153]
In conclusion, I am of the opinion that the
distinction made in s. 38 is based not on sex, but on whether there are
predominantly male job classes in an enterprise for the purpose of comparing
compensation. Furthermore, this distinction does not have a discriminatory
impact on the group of women represented by the appellants. Section 38 of
the Act is therefore valid under s. 15(1) of the Charter , and the
appeal should be dismissed with costs.
The following are the reasons delivered by
The Chief Justice —
[154]
I agree with Abella J. that s. 38 of the Pay
Equity Act, CQLR, c. E-12.001, breaches s. 15(1) .
[155]
The legislated delay imposed by the provision
creates a distinction based on sex because it distinguishes between women in
female-dominated workplaces — the focus of s. 38 — and male employees in
general, whose presence is the lynchpin for higher wages in mixed workplaces.
The substantive effect of the delay Abella J. describes is that women in
female-dominated workplaces were unable to secure fair wages for their work, in
contrast to men doing comparable work in other arenas. Where a distinction
viewed in context is redolent of gender-based difference, as it is here, that
cannot be ignored in the s. 15(1) analysis. Otherwise, the promise of
substantive equality that animates s. 15(1) is betrayed.
[156]
This distinction is discriminatory because the
delay excused employers of women in female-dominated workplaces from paying
their employees fairly for the work they were doing. Quebec gave employers carte
blanche to ignore pay inequity in their organizations during the delay. The
scheme said to impacted women: this is your problem. And the legislated delay
signaled that it was acceptable for employers to make decisions to the
detriment of the autonomy and inherent dignity of women in female-dominated
workplaces. In effect, the scheme bolstered the very power imbalance between
employers and female employees that lies at the heart of gender-based pay
disparities, thereby perpetuating systemic inequality. Finally, it goes without
saying that the economic consequences of pay inequity for women are profound.
[157]
However, I depart from Abella J. on the question
of justification under s. 1 of the Charter . In my view the Attorney
General has not established that the breach is reasonable and justified under
s. 1: R. v. Oakes, [1986] 1 S.C.R. 103. The Attorney General at
the outset must establish a pressing and substantial objective for delaying the
right and disentitling affected women from access to pay equity, exacerbated
here by a lack of retroactive corrections under the Act. The government says it
needed six years to come up with a formula to determine corrections for female-dominated
workplaces due to the absence of male comparator groups and the need to ensure
employer compliance. It also says that retroactive correction was rejected
because it was problematic for employers. I agree that devising a satisfactory
method of evaluating underpayment is a pressing and substantial objective
capable of justifying a limit on the right to equal benefit of the law. It is
more questionable whether the government’s objective of ensuring employer
compliance by imposing a long delay that would be unmet with any retroactive
correction, for example, could justify breaching employees’ rights. To agree
would be to accept that obeying pay equity laws is an option that can be
negotiated and that the very segment that perpetuates systemic pay
inequities — the employers — should be able to perpetuate them as the price of
accepting the law.
[158]
The Attorney General’s attempt to justify the
infringement, in any event, fails at the minimal impairment and balancing
stages of the Oakes test. The Attorney General
says the six-year delay was necessary to work out what constituted equal pay in
female-dominated workplaces, where no male comparator groups were available.
But it has not demonstrated that the whole of the six-year period was required
for this purpose. This period was dictated not by the exigencies of the matter,
but at least 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. Were there other less
impairing options than extended negotiations? The government has not negated
this. Similarly, the Attorney General says it agreed to
deny retroactive correction of pay inequity because this would be difficult for
employers to accept. Again, the government has not demonstrated that other
options that impaired the right less were not available. It does not suggest it
raised the possibility of partial redress, for example. It simply relies on
what it did. Minimal impairment cannot be established simply by saying that a
lengthy delay was required full-stop or that a lengthy delay could not be
accompanied by retroactive correction because this is problematic to the
employers who were perpetrating the inequality. Finally, the Attorney
General has not established that the denial of benefits to the affected,
already-marginalized women, is proportionate to the public interest in denying
them a remedy.
[159]
I conclude that the breach of s. 15(1) has not been shown to be
justified under s. 1 of the Charter , and therefore I would allow the
appeal.
Appeal
dismissed with costs, McLachlin C.J.
dissenting in the result.
Solicitors 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: Poudrier
Bradet, Québec.
Solicitors
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: Laroche
Martin, Montréal.
Solicitors for the respondent: Bernard, Roy (Justice Québec),
Montréal.
Solicitor for the
intervener the Attorney General of Ontario: Attorney General of Ontario,
Toronto.
Solicitors for the interveners
the Equal Pay Coalition, the Women’s Legal Education and Action Fund and the
New Brunswick Coalition for Pay Equity: Faraday Law, Toronto; Cavalluzzo,
Toronto.