Certain provisions of regime establishing periodic review of maintenance of pay equity had discriminatory impact

In 1996, Quebec adopted legislative scheme to address systemic wage discrimination against women. After 10 years, it replaced scheme with a system of mandatory audits every five years. Several unions challenged amendments, claiming that they violated s. 15 of Canadian Charter of Rights and Freedoms. Trial judge held that provisions of amending act that introduced periodic maintenance review were not unconstitutional. However, trial judge held that certain sections of new legislative scheme, which denied retroactive payments and failed to require that audit posting include specific date, breached s. 15 of Charter. Quebec Court of Appeal confirmed trial judge’s decision. Attorney General of Quebec appealed and unions cross-appealed. Appeal and cross-appeal dismissed. It was open to Quebec to opt for regime establishing periodic review of maintenance of pay equity However, it was obvious that certain provisions of new legislative scheme had discriminatory impact. Those provisions constituted prima facie infringement of s. 15 of the Charter. Those provisions did not minimally impair right to be free from discriminatory compensation. Those provisions’ harms far outweighed their benefits. Therefore, provisions in question were unconstitutional.

Québec (Procureure générale) c. Alliance du personnel professionnel et technique de la santé et des services sociaux (2018), 2018 CarswellQue 3616, 2018 CarswellQue 3617, 2018 SCC 17, 2018 CSC 17, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellQue 9477, 2016 QCCA 1659, Rochette J.C.A., and Gagnon J.C.A. (C.A. Que.).